Category: Intelligence Oversight

Posted on

Congressional Release of Classified Information and the Speech or Debate Clause

At Foreign Policy, Professor Bruce Ackerman asks “should members of Congress use their special constitutional powers of free speech to force the facts about the [NSA surveillance program] out into the open?” Ackerman notes that under the Speech or Debate Clause, members of Congress “cannot be prosecuted for reading classified material into the public record– and it is up to them, and them alone, to decide what is worth talking about.” He therefore proposes that individual members of Congress who  oppose the surveillance program, such as Senator Ron Wyden, a member of the Senate Select Committee on Intelligence, disclose such classified information regarding the surveillance program as they believe the public needs to know. Ackerman dramatically concludes “[t]he moment of truth is now.”

Ackerman is certainly correct that the Speech or Debate Clause immunizes members of Congress from prosecution for disclosing classified information on the floor or in committee hearings. See Gravel v. U.S., 408 U.S. 606 (1972). As he also recognizes, however, members are not protected against congressional discipline, up to and including expulsion, for revealing classified information without permission.

What Ackerman overlooks is that both the House and Senate have established procedures for releasing classified information. Wyden, for example, could ask SSCI to disclose information regarding the NSA surveillance program under section 8 of S. Res. 400, which provides that SSCI “may, subject to the provisions of this section, disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such disclosure.” If SSCI votes for public disclosure, it must then notify and consult with the Senate Majority and Minority Leaders prior to notifying the President of the vote. Once the President has been notified and five days have elapsed, SSCI may release the information to the public unless “the President, personally in writing, notifies the committee that he objects to the disclosure of such information, provides his reasons therefore, and certifies that the threat to the national interest of the United States posed by such disclosure is of such gravity that it outweighs any public interest in the disclosure.” In that case, the Senate itself must vote before disclosure may be made.

Ackerman seems to be suggesting that Wyden or other members circumvent this procedure and unilaterally release classified information to the public. This is a bad idea. If the Senate or House allows one member to do this with impunity, nothing would prevent other members from making classified disclosures on the same or other topics. Eventually someone will release information that damages national security and/or provokes a public backlash, thereby giving the executive branch a justification for restricting congressional access to classified information.

Although the congressional procedures for releasing classified information have rarely (if ever) been used, there is nothing preventing Wyden or a like-minded member from seeking to use them now. Certainly such an attempt must be made before there could be any justification for a unilateral disclosure. If there is a moment for unilateral disclosure, in other words, it is not now.

It should be noted, however that SSCI’s draconian interpretation of its secrecy rules might deter Wyden (or others) from publicly disclosing even the fact of an attempt to invoke section 8 of S. Res. 400. This could prevent him from building needed public support for his efforts. Ackerman and others concerned with excessive government secrecy might more profitably focus on that issue rather than advocate for unilateral disclosure that could undermine the entire congressional system for handling classified information.

Posted on

The Senate’s Legal Basis for Muzzling Former Staffers

According to this story, Vicki Divoll, former counsel to the Senate Select Committee on Intelligence, has been barred by SSCI from discussing in the media (specifically Talking Points Memo) certain non-classified information relating to the committee’s oversight of intelligence programs. Divoll gave an interview to TPM regarding the congressional role in intelligence oversight and submitted it to SSCI for review prior to publication, apparently not expecting that there would be any significant concerns. To her surprise: “[F]or the first time in her career, the committee took the extraordinary step, on a bipartisan basis, of declaring the interview’s entire contents a violation of her non-disclosure agreement and effectively forbade her from putting any of it on the record.”

Divoll and TPM present this as an arbitrary decision by SSCI to block public discussion of intelligence oversight. TPM says that the interview did not involve “classified sources and methods of intelligence gathering” but “general information about how the committee functions– and how it should function.” It says that “[a]mong the insights Divoll shared with us was the important role that staff can and should play in oversight of the executive branch’s intelligence activities.” Moreover, Divoll’s statements “tracked closely with information gleaned from other sources, and the public record.”

No doubt the committee has a different perspective on the matter. Still, given that Divoll left the employ of the committee 10 years ago and has frequently discussed matters related to her tenure at SSCI in the media since then, apparently without objection by the committee, this is a somewhat curious development. It raises the questions of what legal authority the committee has to block a former staffer from discussing matters of public interest, how broad that authority might be, and what arguments Divoll might have to challenge that authority. We will turn to those issues now. Continue reading “The Senate’s Legal Basis for Muzzling Former Staffers”

Posted on

Laufman on Leaks

Pertinent to my last post, white collar defense attorney (and my former Hill colleague) David Laufman has published this article for the Huffington Post on “Prosecuting Leaks of Classified Information.” It provides an excellent overview of the laws governing national security leaks, and the challenges and risks involved in prosecuting leakers.

Posted on

Why Doesn’t Congress Investigate National Security Leaks by the Executive Branch?

Stop laughing, I’m serious. If Senator Feinstein and Representative Rogers, the chairs of the Senate and House Intelligence Committees respectively, want to get to the bottom of recent leaks of highly classified information from the executive branch, why don’t they conduct the investigation themselves?

Hear me out. The knee-jerk reaction to such issues is to call for the appointment of a special prosecutor, someone appointed by the Attorney General but given a guarantee of independence to conduct his or her investigation. However, even if the independence of the prosecutor is generally accepted (something that cannot be taken for granted in the highly partisan times in which we live), the criminal process is not necessarily the best mechanism for investigating the leaking of classified information.

For one thing, a prosecutor’s job is to build criminal cases, not to find out how and why leaks have occurred and how to stop them from happening again. For another, there are a lot of difficulties in conducting a successful criminal leak investigation. As recently explained by the Assistant Attorney General for the National Security Division: “One inherent difficulty in leak cases is that the investigations are focused on the pool of individuals who had access to the information, and not those to whom the information was disclosed. This is reflective of the fact that while there are certainly significant national security and law enforcement equities at play in unauthorized disclosure cases, there is also a need to recognize the serious First Amendment interests implicated whenever the media becomes involved in a criminal investigation.” Moreover, when the information in question has been widely disseminated across government agencies, it “can make identifying the source of the leak essentially impossible.”

The congressional intelligence committees have all the tools needed to investigate this matter. They have authority to compel the production of documents, testimony and other evidence in executive session and the systems and procedures to protect the secrecy of the information they gather. They have greater flexibility with regard to obtaining information from the media. Unlike a prosecutor, they don’t have to worry about fixing blame on a particular individual, satisfying all the elements of a criminal violation, or meeting the burden of proof beyond a reasonable doubt. They also do not need to conduct a public trial that might itself jeopardize national security. In addition to assessing responsibility for prior leaks, they can focus on actions to prevent future leaks and to contain the damage that has already been done.

The obvious rejoinder to all of this is that no one would trust Congress to conduct a fair and impartial investigation of such a politically sensitive matter. But while that observation might be compelling in other circumstances, this is a special case. In the first place, the secretive nature of the intelligence committees’ work makes them less susceptible to the occupational hazard of grandstanding. In the second place, Feinstein and Rogers are widely respected, and it would be hard (not impossible, but hard) to characterize any investigation that they jointly conducted as either a witch hunt or a coverup.

And in this case, the comparison is not to a special prosecutor but to prosecutors handpicked by Attorney General Holder. As far as public confidence is concerned, Feinstein and Rogers (or should it be Rogers and Feinstein- it has more of a ring) win hands down.

Of course, if the congressional intelligence committees were to undertake this investigation, they would need an experienced investigator to lead it. Someone who the public would trust. Preferably with some experience in leak investigations. I wonder if anyone like that is available?

 

Posted on

Kathleen Clark on the “Right to Counsel” in Intelligence Oversight

Professor Kathleen Clark recently published this article regarding congressional oversight of intelligence. In brief, she argues that when leaders of the intelligence committees are given restricted briefings by the executive branch, they should be able to share the information with cleared committee staff members from whom they need to obtain “counsel” (by which she means expert, not necessarily legal, advice). She proposes that the committees proactively establish rules or policies to “clarify that the committee leadership can share information with staff where necessary to carry out its oversight responsibilities, including with respect to covert actions.”

I basically agree with this proposal, which is similar in approach to what I have suggested with regard to sharing information with other committee members:

To make the matter clear and to put the executive branch on notice, the House and Senate should each adopt a rule that allows the Gang of Four to further disseminate the contents of a restricted briefing within the intelligence committees. The rule could provide for notice to the President before such dissemination takes place, which would give the executive branch an opportunity to state any objections it may have. In cases where the President objected, the rule might require that the chair and ranking member agree to overrule the objection (or a vote of the entire committee might be required under some circumstances).

It would make sense for such a rule to address both sharing of information with other committee members and with congressional staff.

I would suggest that the default rule for Gang of Four briefings on non-covert action matters should be that each member of the Gang of Four is free to discuss the information with designated committee staff for purposes of obtaining advice on legislative or oversight matters. If the executive branch wished to alter this rule for purposes of a particular briefing, it would have to provide a justification in advance of the briefing, which the intelligence committee leadership could then decide whether to accept or reject.

It should be noted that staff are not necessarily excluded from Gang of Four briefings; for example, selected staff members were included in the Gang of Four briefings on enhanced interrogations. Gang of Eight briefings on covert action, however, are statutorily limited to the Gang of Four plus the four congressional leaders. Therefore, one would not expect staff to be in attendance.

Because of the highly sensitive and time-limited nature of covert operations, I think that different arrangements may be needed with respect to briefings on such operations. The statute recognizes that the President may withhold prior notification entirely with respect to covert operations (as, for example, was the case with regard to the May 1, 2011 operation against Osama bin Laden).  It therefore may be wise or necessary for the intelligence committees to agree not to share information with staff without prior notice to the executive branch (in the same manner as I suggested with regard to sharing information with other committee members).

Finally, I think that it would be preferable to embody these procedures in House and Senate rules, rather than merely in committee rules. However, because of the difficult of amending the Senate’s rules in particular, Clark’s approach may be prove to be more feasible.

For further background, see Al Cummings’s reports on Gang of Eight and Gang of Four briefings.