Obama administration refuses to release Bush-era OLC opinion characterizing “anti-prostitution policy requirement” as unconstitutional

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.

Laura Abel is a Deputy Director of the Justice Program at the Brennan Center for Justice at New York University School of Law.  The Brennan Center represents the plaintiffs in Alliance for Open Society International v. USAID, in which nonprofit organizations are challenging the constitutionality of the “anti-prostitution policy requirement.”