Author: Michael Stern

           Democrats on the House Permanent Select Committee on Intelligence have alleged that Republican members violated committee rules by speaking with The Hill newspaper following a classified briefing by the CIA on interrogation methods.    Specifically, Representative Kline (R-Minn.) was quoted by the paper as follows: “The hearing did address the enhanced interrogation techniques that have been much in the news lately,” Kline told The Hill. “Based on what I heard and the documents I have seen, I came away with a very clear impression that we did gather information that did disrupt terrorist plots.”  The Democrats are threatening punitive sanctions for this alleged violation. 

            The rule in question is HPSCI Rule 12(a)(1), which states: 

            (1) Generally. Except as otherwise provided by these rules and the Rules of the House of Representatives, Members and Committee Staff shall not at any time, either during that person’s tenure as a Member of the Committee or as Committee Staff, or anytime thereafter, discuss or disclose, or cause to be discussed or disclosed:

(A) The classified substance of the work of the Committee;

(B) Any information received by the Committee in executive session;

(C) Any classified information received by the Committee from any source; or

(D) The substance of any hearing that was closed to the public pursuant to these rules or the Rules of the House. 

            If Kline had disclosed classified information to the press, he would be in violation of subsection (C) of this rule.  Such action would also violate House Rules and, potentially, federal law.  However, there appears to be no allegation that classified information was released.  (It is difficult to see how Kline’s statement, which is essentially the same as claims publicly made by former Vice President Cheney and many others in the past several months, could be said to reveal any classified information). 

            Nonetheless, subsection (B) prohibits not merely the discussion or disclosure of classified information, but of any information received in executive session.  Democrats can argue, therefore, that Kline violated the subsection by discussing the topic of the briefing and by disclosing that the information in the briefing indicated that enhanced interrogation techniques resulted in intelligence that disrupted terrorist plots.  Such a statement, they may contend, constitutes “discussing” and/or “disclosing” the information that was received. 

            Republicans can counter that subsection (B) does not prohibit discussing or disclosing the fact or topic of an executive session briefing, only “information received” in the briefing.  (They can point to the fact that the topic of the briefing was on the HPSCI website).  They can further argue that Kline did not discuss or disclose any information received in the briefing (e.g., by identifying terrorist plots that were disrupted), but merely stated his conclusion based on receiving that information.  They might also contend that the purpose of subsection (B) is to prevent the inadvertent disclosure of classified information, and that Kline’s statement was carefully worded to avoid any possibility of doing so.  Finally, they may argue (see this) that under the broad reading of subsection (B) the Democratic members of HPSCI would also be in violation.  [Update:  In this connection, it should be noted that Speaker Pelosi has made a number of remarks in recent weeks regarding an executive session briefing she received while a Member of HPSCI].

For purposes of thoroughness, we should also consider subsection (D). Although the proceeding in question has been variously described, I suspect that it was a briefing, not a hearing. If so, subsection (D) would not technically be applicable. In any event, I am not sure that asking the question of whether Kline’s statement disclosed the “substance” of the hearing, rather than any “information received” therein, advances the cause of either side. One might argue that the term “substance” is broader, thereby prohibiting even a general characterization of a hearing that does not reveal particular information. One could equally well argue that it is narrower, prohibiting only a disclosure of the essence of the hearing, rather than merely particular bits of information. In short, analyzing the question under subsection (D) does not seem to advance the ball any.

As a lawyer, the temptation is to analyze these competing claims based on the language and purpose and legislative history of the rule, and in light of any relevant precedents interpreting the language. It is doubtful, however, that such an analysis would yield any more definitive answers than suggested by the arguments summarized above, and I would suggest that the legalistic approach really misses the point. The Parliamentarians will tell you that the House and committee rules must be interpreted and applied in the spirit of “comity.” Although this philosophy can be frustrating to lawyers, it makes sense in light of the overriding goal of the rules—to establish settled expectations that allow the members to work together with some degree of mutual confidence. Neither using the rules to punish marginal or technical violations, nor looking for loopholes that enable circumventing the rules, is consistent with this goal.

Seen in this light, it is clear that the door opened by Representative Kline’s statement to the press, whether or not it was technically in compliance with the rules, needs to be firmly closed. In and of itself, the statement probably revealed nothing of significance regarding the executive session proceeding, but its natural effect is to pressure others on the committee to respond with their own public characterizations of the proceeding, which will not only risk the disclosure of sensitive information but call into question HPSCI’s ability to conduct future closed proceedings.

The larger problem, however, is that the political dispute regarding enhanced interrogations, and particularly the argument over what Congress knew and when it knew it, threatens to undermine HPSCI’s critical role in overseeing the intelligence community, and more broadly to harm the functioning and institutional reputation of the House. The only way to solve this problem is for the majority and minority to agree on an approach to resolving the matter. This is what then-HPSCI chairman Pete Hoekstra and Ranking Member Jane Harman did went confronted with the politically sensitive issue of Duke Cunningham’s activities as a member of the committee. They established a framework agreement to govern the rules of the investigation, retained a special counsel (me) to investigate and report, and worked together to ensure that the investigation received the committee’s full cooperation.

With respect to the question of what was disclosed to Congress about enhanced interrogations, this should be a relatively easy task. There were only a limited number of briefings regarding enhanced interrogations, a limited number of participants, and a limited number of relevant documents. A neutral fact-finder should be able to review this evidence and come to conclusion fairly quickly.

It is in the interests of the House for the majority and minority to come together, agree to turn down the temperature on this divisive political issue, and choose a mechanism to resolve the factual dispute. I would suggest that the newly created Office of Congressional Ethics could perform this function. Alternatively, the matter could be referred to the Ethics Committee, to a special counsel, or even to the House Inspector General. One way or another, however, this food fight should end.

          Vicki Divoll, former counsel to the CIA’s Counterterrorist Center and the Senate Select Committee on Intelligence, wrote an op-ed for the New York Times this week entitled “Congress’s Torture Bubble,” in which she discusses limitations on the interrogation briefings provided to Congress from September 2002 onward.  Although Divoll covers many of the legal issues addressed in my post earlier in the week, she presents the information in a way that is likely to confuse and mislead her readers. 

             Divoll’s main thesis seems to be that even if the “Gang of Four” (the Chairs and Ranking Members of the congressional intelligence committees) had objected to the interrogation program, “as a practical matter, there was very little, if anything, [they] could have done to affect the Bush administration’s decision on the enhanced interrogation techniques program.”  Her support for this thesis includes statements of the blindingly obvious (individual Members of Congress do not have the power to enact laws on their own) and descriptions of political reality (it was highly unlikely that there would have been political support in Congress for enacting legislation to stop the program).  But the thesis is predicated on the unstated, and unsupported, assumption that the only way Members of Congress could have ended, or even affected, the interrogation program was by passing a new law.  This is debatable, given the fact that the Bush administration ultimately ended the program without any new legislation requiring it to do so. 

            More important, however, is that Divoll’s thesis has nothing to do with her area of presumed expertise, namely the laws and regulations governing intelligence briefings to Congress.  The assumption of congressional impotence also camouflages the fact that she fails to adequately address the most important legal issue, i.e., the limits of what the “Gang of Four” were permitted to do with the information they received. 

             Divoll states that “[i]t is unlawful for the executive branch to limit notification, as it did here, to the Gang of Four.”  This assertion is based on 50 U.S.C. § 413b (c) (2), which, as noted in my earlier post, provides: “If the President determines that it is essential to limit access to [a covert action] finding to meet extraordinary circumstances affecting vital interests of the United States, the finding may be reported to the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other member or members of the congressional leadership as may be included by the President.”   

            The permissive phrasing of this provision makes it difficult to say with certainty whether the President is required, as Divoll contends, to report covert actions to (at least) the “Gang of Eight,” rather than the Gang of Four.  Divoll’s reading of the provision seems reasonable.  However, the provision only applies to notifications about covert actions and, as Divoll acknowledges, the interrogation briefings may not have involved covert actions at all. 

            One should note here the peculiarity that Divoll herself is unsure whether the interrogation briefings were conducted pursuant to the statutory provision.  At the time of the first briefings, Divoll was counsel to SSCI.  One would think that, at a minimum, she would have insisted that the executive branch (a) identify the authority under which it was conducting any restricted briefings, and, (b) if proceeding under the statutory provision, brief the full Gang of Eight.  To the extent there is uncertainty about the authority underlying the briefings, Divoll is as much to blame as anyone. 

            In any event, as I argued in my prior post, it is most likely that the interrogation briefings were not conducted pursuant to the statutory provision, but pursuant to an informal practice that has developed over many years, in which the executive branch briefs only the Gang of Four about sensitive intelligence matters that do not involve covert actions.  Divoll acknowledges the practice, and the fact that it began before the Bush administration, but still asserts that “every member of the two committees should have been notified” about the interrogation programs. 

            But what does she mean by this?  Does she mean that the practice of restricted briefings is bad policy or actually illegal?  Did she object to this practice either when she advised the briefers (CTC) or the briefees (SSCI), and, if so, on what basis?  If the executive branch has been violating the law when it provided restricted briefings, haven’t the congressional intelligence committees been violating the law when they accepted them?   Divoll answers none of these questions. 

            A better view of the law, it seems to me, is that while the executive branch and congressional intelligence committees are free to agree to restricted briefings, there is no legal prohibition against the Chair and the Ranking Member sharing the information with other members of the committee.  Furthermore, as argued in my prior post, the rules of the House and the House Intelligence Committee at least allow, and under some circumstances may compel, such information sharing. 

            Divoll acknowledges that the Gang of Four could have shared the interrogation briefings with other members of the committees.  However, she presents this in passing, as if it is of no moment, and fails to explain why the Gang of Four would not have taken this step if they had objected to the interrogation program.  Instead, she leaves the impression that such action would be as radical as disclosing the information in open session on the floor, although the latter would be clear violation of congressional rules.  And while Divoll is correct that the Speech or Debate Clause would protect the Gang of Four from civil or criminal liability for things said on the floor of the House or Senate (or in committee), it would not protect them from punishment by Congress. 

            In short, Divoll’s op-ed, while it might mislead readers to believe that the Gang of Four had no viable options for responding to the interrogation briefings, does not in fact make such a case.  As discussed in my prior post, viable options did exist.  Whether these would have been successful in changing the interrogation program is, of course, a matter of speculation.  But the same could be said whenever a Member of Congress sets out to stop or change an executive branch policy.

            Documents released by the CIA in the past few days indicate that congressional staff attended the key briefings given Congress with regard to “enhanced interrogation techniques” used on terrorist detainees.  In particular, a September 4, 2002 briefing to Porter Goss and Nancy Pelosi, then the Chairman and Ranking Member of the House Permanent Select Committee on Intelligence, was attended by Tim Sample and Michael Sheehy, and a February 5, 2003 briefing to Goss and Jane Harman (who had then replaced Pelosi as HPSCI Ranking Member), was attended by Patrick Murray, “Louise” Healey (referring, I assume, to Christine Healey, whose real first name is apparently classified), and Sheehy. 

            This is interesting for several reasons.  First, the fact that congressional staff participated in the briefings may tell us something about the legal authority under which the briefings were conducted.  There is only one legal provision which explicitly authorizes intelligence briefings limited to the Chairman and Ranking Member of the House and Senate Intelligence Committees.  This provision, which governs covert action findings, states: “If the President determines that it is essential to limit access to the finding to meet extraordinary circumstances affecting vital interests of the United States, the finding may be reported to the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other member or members of the congressional leadership as may be included by the President.”  50 U.S.C. § 413b (c) (2). 

            If the Bush Administration had been relying on this provision, it seems unlikely that it would have permitted staff to attend the briefings.  After all, the statute specifically identifies the persons to whom the President may choose to report the finding, and all of them are members of the House and Senate.  It would seem difficult for the administration to have justified excluding congressional leadership, which is specifically mentioned in the statute, while at the same time including HPSCI staff, which is not.

            It seems more likely, therefore, that the briefings were conducted pursuant to an informal practice that has developed over a number of years.  This practice was described by L. Britt Snider in a 1997 article entitled “Sharing Secrets with Lawmakers:  Congress as a User of Intelligence:  “Occasionally, even in the intelligence committees, an analytical judgment or conclusion will be based on very sensitive information that analysts feel uncomfortable imparting to a large audience. Agencies typically deal with such situations by briefing the chairman and the ranking minority member separately, or perhaps the majority and minority staff directors acting in their stead. When the full committee is subsequently briefed, the analyst usually states that certain extremely sensitive information has been conveyed separately to the chairman and the ranking minority member.”

            Since that time, it appears that the practice of limiting briefings to the Chairman and Ranking Member (or their staff representatives) has become broader and more routine.  According to a January 2009 CRS Report, the executive branch now generally limits briefings on “operational intelligence” in this fashion, despite the absence of any statutory authority to do so.

            The fact that the executive branch without statutory authority limits who may attend briefings, however, cannot in itself impose any restriction on what may be done with the information received in those briefings.  (This also may be true, but less obviously so, for limited briefings authorized by statute).  I presume that the executive branch would claim there is at least an informal understanding that the information provided in limited briefings will not be shared with other members of the intelligence committees; perhaps there are even written protocols to that effect.  But while such agreements might be “enforced” by the executive branch cutting off future briefings, they would not seem to be legally binding or enforceable in any sense.

            Furthermore, it might be difficult to square any such non-disclosure agreement with the rules that govern HPSCI.  Nothing in either the House or committee rules explicitly authorizes, much less requires, the Chairman or Ranking Member to keep information secret from other members of HPSCI.  On the contrary, HPSCI Rule 14(b) provides that “[a]ll Members of the Committee shall at all times have access to all classified papers and other material received by the Committee from any source.”    In addition, House Rule X (11) (g) authorizes HPSCI to “disclose publicly any information in its possession after a determination by the select committee that the public interest would be served by such disclosure.”  If the Chairman and Ranking Member could not disclose information to other members, there would be no way for the committee to make this determination.

            It seems likely, therefore, that Goss, Pelosi and Harman were legally entitled (a) to disclose information received in the restricted EIT briefings to other members of HPSCI and/or (b) to introduce a HPSCI resolution authorizing the disclosure of the information to other members for purposes of making a finding under House Rule X (11) (g).  Of course, they might not have been aware of their legal rights in this regard if they had been dependent solely on the executive branch for advice and assistance.  But because they had staff to advise them, they had the opportunity to learn their rights if they were so inclined.