Balkinization: What is the Possible Justification . . .

What is the Possible Justification . . .

Marty Lederman

. . . for the House and Senate Intelligence Commitees conducting closed-door hearings about the destruction of the CIA tapes?

Even if some of what was on those tapes is classified, and even if occasionally some bits and pieces of the testimony (e.g., the names of the agents; some information gleaned from a detainee) could only be discussed in a classified setting, why wouldn't the committees insist upon a presumption of public hearings about the who/what/when/where/why of the tape destruction?

The Church Committee hearings, and public reports, should be their model. But the Committee members are simply so used to the idea of closed hearings -- and not sharing what they've learned with their constituents -- that they reflexively close the hearings, even though there's really no good reason to do so.

UPDATE: Many thanks to commenter MLS for pointing out that there are, in fact, Committee rules about open and closed hearings. Here's the relevant House Rule:

5. open meetings

(a) Generally, Pursuant to Rule XI of the House, but
subject to the limitations of subsection (b), Committee
meetings held for the transaction of business, and Committee
hearings, shall be open to the public.
(b) Exceptions. Any meetings or portion thereof, for the
transaction of business, including the markup of legislation,
or any hearing or portion thereof, shall be closed to the
public, if:
(1) the Committee determines by record vote, in open
session with a majority of the Committee present, that
disclosure of the matters to be discussed may:
(A) endanger national security;
(B) compromise sensitive law enforcement information;
(C) tend to defame, degrade, or incriminate any person; or
(D) otherwise violate any law or Rule of the House.
(2) Notwithstanding paragraph (1), a vote to close a
Committee hearing, pursuant to this subsection and House Rule
X shall be taken in open session--
(A) with a majority of the Committee being present; or
(B) pursuant to House Rule X, clause 11(d)(2), regardless
of whether a majority is present, so long as at least two
Members of the Committee are present, one of whom is a member
of the Minority, and votes upon the motion.

OK, so if that is the rule, why has this hearing been closed -- after all, there has not been a vote as required by section 5(b), and the predicate for such a vote likely is not present.

Well, it turns out it can be closed because . . . it's not a hearing, it's a "briefing"; and subsection 5(c) provides that "all Committee briefings shall be closed to the public."

What's the difference between a briefing and a hearing? I don't really know. (I hope the answer is not simply that a "briefing" is a hearing that has been closed!) I'd be grateful for any information on this question.

Senate Committee Rule 2.1 provides that "[m]eetings of the Committee shall be open to the public except as provided in paragraph 5(b) of Rule XXVI of the Standing Rules of the Senate." And that paragraph 5(b) of Rule XXVI, in turn, provides:

(b) Each meeting of a committee, or any subcommittee thereof, including meetings to conduct hearings, shall be open to the public, except that a meeting or series of meetings by a committee or a subcommittee thereof on the same subject for a period of no more than fourteen calendar days may be closed to the public on a motion made and seconded to go into closed session to discuss only whether the matters enumerated in clauses (1) through (6) would require the meeting to be closed, followed immediately by a record vote in open session by a majority of the members of the committee or subcommittee when it is determined that the matters to be discussed or the testimony to be taken at such meeting or meetings
(1) will disclose matters necessary to be kept secret in the interests of national defense or the confidential conduct of the foreign relations of the United States;

(2) will relate solely to matters of committee staff personnel or internal staff management or procedure;

(3) will tend to charge an individual with crime or misconduct, to disgrace or injure the professional standing of an individual, or otherwise to expose an individual to public contempt or obloquy, or will represent a clearly unwarranted invasion of the privacy of an individual;

(4) will disclose the identity of any informer or law enforcement agent or will disclose any information relating to the investigation or prosecution of a criminal offense that is required to be kept secret in the interests of effective law enforcement;

(5) will disclose information relating to the trade secrets of financial or commercial information pertaining specifically to a given person if
(A) an Act of Congress requires the information to be kept confidential by Government officers and employees; or

(B) the information has been obtained by the Government on a confidential basis, other than through an application by such person for a specific Government financial or other benefit, and is required to be kept secret in order to prevent undue injury to the competitive position of such person
; or

(6) may divulge matters required to be kept confidential under other provisions of law or Government regulations.

Did such a vote to close occur here? If so, on what ground?

Posted 5:16 PM by Marty Lederman [link]

Comments:

It's become pellucidly apparent that the members of Congress, as with the White House, no longer feel they represent or are responsible to their supposed constituents; we are now but subjects...condescended to with empty rhetoric, but absolutely ignored otherwise. Those we hire for short-term work contracts--temps, the lot of them--have taken over management and are in service to their own agendas.

# posted by

Robert Cook : 7:45 PM

According to the NYTimes' Mark Mizetti, "Government officials said that Wednesday’s session was far more contentious then General Hayden’s classified briefing to the Senate a day earlier. They said h [sic] lawmakers had aggressively questioned the C.I.A. director."

What is going on? Clearly the Senate Select Intelligence Committee is compromised. Rockefeller's tepid comments ("The West Virginia Democrat also said he has not decided whether to seek testimony from John Kiriakou"-- CBS), and his statement that he doesn't think "there is a need for special counsel" (Bloomberg) as well as allowing this hearing to happen behind closed doors indicates one inescapable conclusion: the democratic leadership is compromised on torture, perhaps knew about these tapes, and probably tacitly assented to "extraordinary" techniques. The latter has been reported on Pelosi (by ABC). If Rockefeller is mixed up in this he should be pushed to resign from the Committee. His tepid response to a likely criminal conspiracy in the White House is otherwise unexplainable. This cover-up, if allowed to stand, implicates any of us who have a stake in the Democratic Party.

# posted by

Anonymous : 9:17 PM

Marty,

Why don't you just run for Congress? That way you won't just be a crazy guy who has opinions on everything Congress does; you'll actually be a Congressman.

# posted by

The Counterfactualist : 10:45 PM

A couple of observations. First, these were briefings, not hearings. HPSCI's rules provide that all briefings are closed so technically it could not have been public. (I am not sure about SSCI, but I would expect they have similar rules).

Second, had these been hearings, there would have been a requirement that a majority of the committee determine that the testimony or evidence endanger the national security in order to close the hearing. However, while the House rules provide a general presumption of open hearings, HPSCI (and the ethics committee) has a special rule that makes it much easier to close hearings.

Third, (I guess this is more than a couple of observations), there would be both practical and perhaps parliamentary issues raised by the suggestion that only parts of the hearing be closed. Neither the House rule relating to HPSCI nor HPSCI's own rules appear to contemplate the possibility of partial closure of hearings-- perhaps they can do so, but I am not sure. At a minimum, HPSCI appears to be authorized to close the entire hearing if any part will endanger national security. As a practical matter, it would be difficult for HPSCI to do what you suggest. Its closed hearings have to be conducted in the secure space in the Capitol-- and I do not believe that it can hold open hearings there (SSCI may be in a different position in this respect because it has a secure space outside the Capitol).

Fourth, while you might prefer that the intelligence committees operate under the same rules that the Church Committee did, they do not in fact do so. They operate under rules that were negotiated with the executive branch and are designed to ensure that the most sensitive information can be shared with Congress. Congress can of course change these rules but one can expect the executive branch (even beyond the current administration) to react accordingly.

Along those lines, your proposal would only work if General Hayden and the administration agreed to it. To say the least, that assumes facts not in evidence.

Moreover, while you are probably right that the intelligence committees have a inherent bias in favor of closed meetings/hearings (beyond even what is required by the rules themselves), I am not sure that this particular subject is an obvious candidate for an open hearing. I imagine that quite a bit of the discussion, particularly if there were a real dialogue with the committees, would include classified matters.

Finally, there are procedures for committees to disclose publicly information in their possession, even including information that is clearly classified. These procedures are (intentionally) cumbersome, but they would seem to be the most appropriate way for the committees to release any information from General Hayden which they believe it is in the public interest to share.

# posted by

mls : 11:45 PM

What is the difference between a hearing and a briefing?

There are lots of differences-- hearings are subject to formal procedural requirements such as that a quorum of members have to be present, testimony and questioning take place in a certain way and in a certain order (eg, members each have a set period of time to ask questions), witnesses have various rights (eg, to have counsel present), etc.

Briefings, which are routinely conducted by many, probably all, congressional committees, are informal in nature. They normally are not transcribed, may be held for just a subset of members on the committee or for staff only, have no rules about who can ask questions and when, etc. And they are seldom if ever open to the public.

Is there anything to require a committee to gather information through a hearing rather than a briefing? The answer is no. But think about it for a second. If committees were required to get information only through hearings, their investigatory and factfinding functions would be eviscerated. They couldn't conduct confidential witness interviews, for example.

From a parliamentary perspective, you could raise the issue of whether a briefing to which an entire committee (or subcommittee) is invited is or should be deemed a "meeting" (or a "meeting held for the transaction of business")for the purpose of the open meeting rules. As a matter of practice, the answer is certainly no. However, whether this is simply a matter of practice or whether the parliamentarians in either House have ruled on this issue, I do not know.

There are two different complaints that you may have here. First, you may not like the fact that congressional committees, and the intelligence committees in particular, receive a lot of information behind closed doors. Fair enough, but as I pointed out in my earlier comment, there are historical and policy reasons why the intelligence committees operate they way they do. You could make a serious proposal to change the rules and practices in this regard, but you would have to deal with the implications, particularly with regard to the likely reaction of the executive branch.

Second, you may be observing that congressional committees, like Congress in general, do not always, shall we say, follow their own rules to the letter. That's a fact, although, for the reasons I stated, you may or may not have identified an example here.

# posted by

mls : 8:57 AM

Thinking about my last comment, I should amend it as follows. I suspect, but cannot say for certain, that full committee briefings would not be treated as meetings for purposes of the Senate rules. (From experience, I know that in the Senate staff briefings or those for individual members are not treated in this way). Clearly, HPSCI's rules show that their briefings are not treated as meetings.

Thus, it is possible that SSCI would have considered its briefing to be a "meeting" and taken a vote to close pursuant to the rule you cite. However, I doubt it.

# posted by

mls : 9:21 AM

Thanks, MLS. That's certainly correct, at least as to the House Committee. (Not clear from the rules I've cited that the Senate can get away with anything less than a vote to close it.) But then the question in *this* case becomes why they opted for a briefing rather than a hearing -- *other than* to keep the public out, which was my complaint in the first instance. Why wouldn't you want Hayden/Goss/Rodriguez/etc. on the public record?

# posted by

Marty Lederman : 9:25 AM

Marty:

Even if some of what was on those tapes is classified, and even if occasionally some bits and pieces of the testimony (e.g., the names of the agents; some information gleaned from a detainee) could only be discussed in a classified setting, why wouldn't the committees insist upon a presumption of public hearings about the who/what/when/where/why of the tape destruction?

Because the contents of the tapes, the means and methods of the interrogation program, the information provided to and obtained from the prisoner during questioning, the identities of the interrogators, legal opinions concerning the tapes and the interrogation program, and prior briefings to Congress are all classified, there is actually very little than can be discussed in public except who destroyed the tapes, when they were destroyed and perhaps why. This information would make up a very small part of any briefing on the subject and will almost certainly be disclosed by the committees.

Of course, there is also a political reason to hold closed sessions. The Dems on the committees do not want to tell their voters that they approved the same CIA interrogation regime which they later decried. Just like Mr. Bush claims that the US does not "torture," the congressional Dems now claim that they were not briefed on "torture" to dodge the fact that they were briefed about waterboarding and the rest of the coercive regime.

# posted by

Bart DePalma : 9:47 AM

The fact open sessions might reveal that those "legal opinions" are invalid, while at the same time could expose the Bush administration to criminal liability involving war crimes seems to be a very good reason from keeping the findings from becoming public. Granted, this is speculation, but noting the zeal with which this administration has engaged in nullifying the chance of facing prosecution (refuting the Geneva Convention because Gonzales opined it would reduce the chance of litigation involving the War Crimes Act, the Military Commissions Act rewriting the WCA by retroactively immunising those that were in danger of prosecution after the Supreme Court decided the GC did in fact apply, and of course the epidemic of "State Secrets privilege" used to prevent litigations involving violations of US and International Law) is both disturbing and enlightning when confronted with yet another attempt at keeping compromising facts from surfacing.

# posted by

Nescio : 10:43 AM

Professor Lederman

I don’t want to belabor this subject, but let me just state or reiterate a few points so that my position is clear.

1. The normal practice at both HPSCI and SSCI is to receive information in executive (ie, closed) session, whether it is a hearing or a briefing. I am sure that both have far more closed briefings than they do hearings of any kind, and, when they do have hearings, these are more likely to be closed than open. (I think you acknowledged as much in your initial post). It seems somewhat unfair, therefore, to infer that these particular briefings are being conducted as a pretext for shutting out the public.
2. Even if the committees had decided to proceed by hearing rather than briefing, they would almost certainly have conducted the hearings in closed session. You state that the predicate for voting to close “is likely not present.” I am guessing that you say this because you don’t think that an open hearing would endanger the national security. But I am sure you understand that all classified information is treated as if it would endanger the national security, that classification decisions are made by the executive and that, as a practical matter, the committees pretty much have to rely on the intelligence agencies to tell them if particular information is classified. So even if the committees agreed with you that this subject could be discussed in open session, there isn’t much they could do about it unless General Hayden agreed. Which I am sure that he does not.
3. Let’s leave aside the complicated question of exactly what information can lawfully and appropriately be discussed in an open session. I tend to think that much of the discussion here probably should not occur in open session, while you think that almost all of it should (both of us being somewhat handicapped by not knowing the information in question). But I am sure that some of it could occur in open session, while you acknowledge that there are parts which should not. So let’s stipulate for purposes of discussion that there are some aspects that clearly can be discussed publicly, some that clearly cannot, and some that fall into a gray area.
4. Assuming that it were entirely up to the committees to make these distinctions, how should they proceed? It seems to me that it would be neither practical nor responsible for them to hold open hearings which would be periodically closed when classified or sensitive information comes up. Impractical for the parliamentary and administrative reasons I mentioned earlier. Irresponsible because this mode of proceeding creates a grave risk that information will be accidentally released.
5. The logical way for the committees to proceed is to start with a closed session in which they receive all of the information, just as they have done. If they then determine that there is segregable information that can be discussed in open session, there is absolutely nothing that prevents them from subsequently having an open hearing on that information. Alternatively, as I indicated earlier, they can vote to release such information (including even classified information) that they believe to be in the public interest to disclose.
6. Finally, nothing that I have said should suggest disagreement with you on the larger question of whether there are serious problems in the congressional oversight of intelligence. I do believe, however, that you need to step back and look at the overall picture. That is why I suggested, in an earlier thread, taking a look at the 9/11 Commission’s recommendations on reform of congressional oversight of intelligence.

# posted by

mls : 11:32 AM

will tend to charge an individual with crime or misconduct, to disgrace or injure the professional standing of an individual, or otherwise to expose an individual to public contempt or obloquy, or will represent a clearly unwarranted invasion of the privacy of an individual

It seems to me that the Senate ignores this particular clause on a regular basis (e.g., the baseball steroid hearings). Apparently they have a bias in favor of open hearings when ordinary citizens might be harmed.

I can see why more care would be necessary with national security issues, but (1) I'm highly skeptical that national security is actually at issue in this case; and (2) I strongly suspect that the Democrats are concealing their own culpability in this mess.

There's clearly a great deal of information which could not reasonably be considered to impact national security. The problem with closed hearings is that they are over-inclusive, hiding both the truly secret and the merely embarrassing (to Congress and/or the Administration). There's no particular reason we, the people, should trust them, most especially when the very issue at hand is the (attempted) concealment of criminal misconduct by destruction of evidence. Hiding the investigation of hiding evidence is not a formula for trust in government.

# posted by

Mark Field : 11:52 AM

Is there anything to require a committee to gather information through a hearing rather than a briefing? The answer is no. But think about it for a second. If committees were required to get information only through hearings, their investigatory and factfinding functions would be eviscerated. They couldn't conduct confidential witness interviews, for example.

Sure they could. There are plenty of justifications for this in the code Marty posted. They just need to vote in open session.

# posted by

cwf : 9:51 PM

Just to flog a dead equine a bit more:

"Bart" DePalma: "The Dems on the committees do not want to tell their voters that they approved the same CIA interrogation regime which they later decried."

And your evidence for this is?!?!?! Please, enlighten us, out with it: _____________.

Be specific now. Otherwise we'll think you're just making sh*te up as you go along.....

Thanks in advance.

Cheers,

# posted by

Arne Langsetmo : 10:26 PM

As compelling as the mechanics of the open/closed hearings are, I would also like to know why we should think the democratic leadership is compromised. I provided some anecdotes pointing in that direction, but now that De Palma has offhandedly agreed, I'd like to hear what evidence or theory he has.

# posted by

Anonymous : 10:40 AM

arne/j. roy:

Back in 2002, the Dem and GOP leadership was briefed on these programs and either tacitly approved them by inaction or actively questioned whether the programs were tough enough like Rockefeller did.

After elements of the CIA interrogation program were leaked to the press, many of these very same Dem leaders like Speaker Pelosi went on record condemning coercive interrogation without revealing to their voters that they had known about these techniques for years and did nothing.

Since the CIA leaked to the WP about the 2002 briefings, the Dem leaders have been as quiet as little church mice and were out front calling for closed session hearings. This is the same Dem Congress which had been setting new records for the number of partisan "oversight" hearings on every other subject under the sun.

Connect the dots.

This public relations counter offensive by CIA has been rather brilliant. They are dominating the news cycle with their version of events and have shut up their opponents.

# posted by

Bart DePalma : 11:44 AM

Even that loon Sheehan can connect the dots here as she is calling for the impeachment of Speaker Pelosi for her complicity in "torture which dehumanize us all."

Of course, the lady might want to actually read the Constitution's provisions on impeachment...

# posted by

Bart DePalma : 12:44 PM

"Bart" DePalma:

arne/j. roy:

Back in 2002, the Dem and GOP leadership was briefed on these programs and either tacitly approved them by inaction or actively questioned w... blahblahblahblahblauuugggghhh.

I asked for evidence. Not repeated assertion.

Connect the dots.

Sorry, I don't (and can't) do Etch-A-Sketch on your hallucinations, "Bart".

FWIW, I'm also curious as to what effect you think it would have if the Gang of Four "approved" this stuff. As far as I'm concerned, they could have shouted to the heavens High Hosannahs about the wonderfulness and briliiance of such torture, but absent some freaking law duly passed by Congress, that wouldn't make a damn bit of difference as to the legality.

But once again, asked for evidence, you just come up empty.

This public relations counter offensive by CIA has been rather brilliant. They are dominating the news cycle with their version of events and have shut up their opponents.

Ask the docs to titrate the Haldol up a notch, "Bart".

Cheers,

# posted by

Arne Langsetmo : 3:12 PM