FOIA Lawsuit Seeks Bush-Era DOJ Opinion

Today, the Brennan Center for Justice is filing a
federal lawsuit to compel release of a long-suppressed Bush-era legal opinion;
the opinion in question purportedly acknowledges that a federal law -- which
requires organizations receiving federal grants for HIV/AIDS work to pledge
opposition to prostitution -- may be unconstitutional.

The opinion was drafted in 2004 by the Office of Legal
Counsel (OLC) housed within the Department of Justice (DOJ).

The "pledge requirement" (22 U.S.C. SS 7631(f)) requires
organizations to vow opposition to prostitution. The nonprofit community
opposes the law because it hampers their HIV/AIDS prevention work with
prostitutes and others vulnerable to the pandemic.

"This couldn't be more relevant," said Rebekah Diller,
Deputy Director of the Brennan Center's Justice Program. "The
Department of Health and Human Services (HHS) is currently deciding how to
enforce the pledge requirement. If it is unconstitutional, this would moot this
question and leave HHS with more time in which to do their important health
care work."

The opinion sought in today's Freedom of Information Act
(FOIA) request was issued in February 2004 but was not publically disclosed. It
purportedly states that the Constitution bars federal agencies from enforcing
the pledge requirement against U.S. organizations. In September 2004, OLC
withdrew that opinion in a letter that said "reasonable arguments" support the
statute's constitutionality.

The impetus for the FOIA request was a lawsuit, Alliance
for Open Society International v. USAID, that challenged the statute. The
Judge in that case enjoined enforcement against most U.S. organizations pending
a final ruling in the case.

"Release of any document that indicates the Bush Justice
Department viewed the pledge requirement as unconstitutional would further
illuminate the role political pressure played in OLC's September 2004
letter and in other legally questionable OLC memos, including those on torture
and rendition. Together, these documents provide a jarring insight into the way
the Bush Justice Department bent the rule of law for ideological
reasons," said Laura Abel, Deputy Director of the Brennan Center's
Justice Program.

In 2005, the Brennan Center requested the undisclosed
opinion from DOJ, HHS and the U.S. Agency for International Development
(USAID). The agencies repeatedly denied these requests, citing the
"deliberative process privilege" -- which sometimes protects documents
containing an agency's internal communications.

The Brennan Center complaint shows that this privilege is
inapplicable here, because HHS and USAID acknowledged reliance on the
undisclosed opinion when they refrained from enforcing the pledge requirement
against U.S. nonprofits in 2004 and 2005.

For more information, or to arrange an interview with
Rebekah Diller or Laura Abel, please contact Jeanine Plant-Chirlin at
212-998-6289 or Jeanine.plant-chirlin@nyu.edu.

Download pdf of FOIA filing.