Brennan Center for Justice

(This article also appeared on The Hill's Congress Blog on Oct. 20.)

The Obama Administration has pledged to restore transparency in
government.  But last week the Brennan Center had to sue for the
release of a Bush-era opinion by the Department of Justice’s Office of
Legal Counsel (OLC). The opinion calls into question the government’s
continued attempts to enforce an unconstitutional speech restriction –
the “anti-prostitution policy requirement” –
undermining the global
fight against HIV/AIDS.

The requirement forces non-profits that
receive federal funds to fight HIV/AIDS overseas to adopt
organizational policies explicitly opposing prostitution. While the
non-profits do not support prostitution, many use HIV/AIDS prevention
methods developed by public health experts, which include working
closely with prostitutes in a non-judgmental manner. The policy
requirement undermines that work.

In February 2004, OLC wrote a
memo stating that enforcing the policy requirement against U.S.
organizations would be unconstitutional. The opinion was a remarkable
moment of honesty. Because the February 2004 opinion has never been
publicly disclosed, we do not know the particulars of its legal
reasoning. It must have been pretty forceful, though: at least two
government agencies – the U.S. Department of Health and Human Services
(HHS) and the U.S. Agency for International Development (USAID) –
heeded the OLC policy requirement memo, refraining from enforcing the
policy requirement for about 18 months.

OLC’s honesty was short-lived, however. In September 2004, OLC
reversed course, stating in a letter that there existed “reasonable
arguments to support the constitutionality” of the policy requirement.
This letter will look eerily familiar to readers of OLC’s infamous
torture memos. Like them, it ignores settled legal precedent – in this
case several decades of Supreme Court “unconstitutional conditions”
jurisprudence – and relies on old decisions of questionable validity.

For
more than four years, HHS and USAID have relied on the September 2004
letter as a basis for enforcing the policy requirement against U.S.
organizations.  Fortunately for the fight against HIV/AIDS, for much of
that time a federal court order has barred them from enforcing the
policy requirement against most U.S. organizations.

Now, HHS is
embarking on a rulemaking process, with the goal of revising
regulations that implement the policy requirement by early January
2010. This is a crucial moment for the public to play a role in
shaping those regulations. Understanding why OLC initially condemned
the policy requirement as unconstitutional could not be more
important. So far, though, OLC, HHS and USAID have refused our FOIA
requests for the February 2004 OLC opinion.

On Inauguration Day,
President Obama instructed the executive agencies to honor FOIA
requests whenever possible, stating: “A democracy requires
accountability, and accountability requires transparency.” Our hope in
filing the lawsuit is that we will obtain the opinion in time to
influence the rulemaking process. Only then will transparency be able
to play the role in the democratic process that President Obama
intended.