Balkinization  

Monday, August 05, 2013

National Security and the Speech and Debate Clause

Bruce Ackerman


Up to now, Congress has allowed the Administration to say one thing in secret sessions and say something very different in public about the nature of its surveillance programs. Most notoriously, Director of National Intelligence James Clapper lied under oath at a public hearing in March. This is a crime, and yet the White House continues to back its DNI  – contenting itself with the fact that Clapper has now publicly apologized for his misconduct.

The ball is back in Congress’ court. I’ve argued in Foreign Policy that the Speech and Debate Clause provides it with a platform for a strong response. The Clause authorizes Senators and Representatives to reply to continuing Administration distortions by publishing classified information that will let the voters know the truth.

With Congress on its summer recess, this seems a good time for more scholarly discussion to prepare the way for a larger debate in September: Is the Speech and Debate Clause properly construed to authorize the publication of classified information?  When, if ever, is such a step justified?


Comments:

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"Is the Speech and Debate Clause properly construed to authorize the publication of classified information?"

Yes. "Classified" is not enough for a prior restraint for the press. It isn't here. The rule ultimately should largely be based on the judgment of the members of Congress, any abuses addressed by the ability to expel. I have for years wondered why this clause gets so little play. It's sad.
 

Depends how you read the Speech and Debate Clause:

...shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Publishing classified information is a felony.

Does the exception for felonies apply to just the privilege to be free from arrest coming, going or at the legislature or also the the privilege to be free from answering for speeches?

This clause makes the Second Amendment appear to be the acme of clarity.
 

Lying to congress on military and intelligence matters really got legs around 1942 with the advent of the Manhattan Project and never ended. Lying to congress in these matters is routine and expected by the Congress itself. No one who would tell the truth to Congress on myriad such matters at various times would even be considered for a position of authority in the Military or the Executive branch. Lying to congress serves as a sort of right of passage professionally and personally in the Pentagon and the Beltway.
 

Note that the Speech and Debate clause is a separate clause following a semi-colon. This seems to be an independent clause, unlike the situation with the 2nd Amendment.
 

shag:

The semi-colon is what makes the run on sentence interesting.

There is also an issue as to whether "felony" in the clause is limited to the common law felonies of the day or the far more numerous statutory felonies of today - like the Espionage Act.

Further, does intentionally publishing classified information you know will give aid and comfort to the enemy constitute constitutional treason?

What if Congress makes it a felony for one of its members to released classified information in a speech or debate in either House?

The clause is a textual mess.
 

I haven't read Professor Ackerman's article, but the legal framework here is very non-controversial in Congress. The Speech or Debate Clause immunizes Members from criminal or civil liability for disclosures made on the floor or in congressional hearings (see US v Gravel), but they would be subject to discipline or expulsion by their respective bodies if they disclose classified information without permission. Either house can authorize the disclosure of classified information if it believes the public interest so requires.
 

Does the Speech and Debate clause establish a constitutional right (or privilege) on behalf of a member of Congress? If so, then perhaps the Amendment process would be required to make a change, not an act of Congress that becomes law, since the Constitution may trump that law.

mls raises interesting points from the view of Congress. There are potentially conflicting provisions of the Constitution that come into play, including each house of Congress establishing its own rules. But as suggested above, the Speech and Debate clause may constitute a right that a member cannot be deprived of.

Linguists and historians should be heard from. Yes, textualism can be a mess. I just finished reading Jack Balkin's new (draft) article and have been thinking about how history may be used to address Prof. Ackerman's question. Originalists question the national security state that came about long after the Constitution. New Originalism would seem to look upon the Speech and Debate clause as involving construction rather than interpretation. Textualism doesn't seem to provide an answer. So the use of history in resolving this question should be interesting as the usual suspects (founderfs/framers/ratifiers/adopters) may not have had a clue. [Vegas' odds are 5-4, either way.]
 

There's an apocryphal (but probably true) story about Hoover, that he'd welcome new members of Congress and high-level appointees to a personal briefing on How the FBI Does Good. During that briefing, he'd let the person know just how much dirt the FBI had on them, their family, co-workers and friends/associates.

I imagine that the NSA has even more dirt.
 

I have posted a more detailed response at Point of Order.
 

Further, does intentionally publishing classified information you know will give aid and comfort to the enemy constitute constitutional treason?

I won't comment on the rest of Bart's post, but this one's easy. "No".

Bart is making the mistake that most conservatives make when reading the treason clause. It doesn't prohibiting giving enemies aid and comfort. It prohibits ADHERING to enemies, giving them aid and comfort. You can give them all the aid and comfort you want, as long as you don't adhere to them.

Publishing classified information isn't joining Al Qaeda. Therefore, it's not treason.
 

mls' post at his Point of Order is interesting. But consider the entire Constitution. The First Amendment provides that Congress shall make no laws infringing speech (and other specified matters). The Speech and Debate clause was enacted before the Bill of Rights. While there is no provision in the Constitution as originally enacted that specifies that Congress shall make no laws infringing the right (privilege) of a member of Congress under the Speech and Debate clause, certain actions taken by Congress would seem to infringe upon such a member's right (privilege). So there is a clash of constitutional provisions. Can action by Congress trump the specific Speech and Debate clause? Is such Speech and Debate permitted to be questioned in a house of Congress with such action but not in any other Place? Does the First Amendment speech clause enhance or detract from the right (privilege) of a member of Congress under the Speech and Debate clause?

Let's have more speech and debate, especially when the text of the Constitution fails to provide a clear answer.
 

Shag- I think you are suggesting that a house of Congress might be constitutionally prohibited from punishing members for speech protected by the Speech or Debate Clause (or the First Amendment). If that were true, then there could be no enforceable rules regarding decorum and debate, which lie at the heart of congressional rules. Members would be free to interrupt or insult their colleagues, defame private individuals, use foul language, personally attack the President, etc.

I can assure you that no one who knows anything about the Speech or Debate Clause subscribes to the theory you are suggesting. I don't think this is Professor Ackerman's position either, although it is not entirely clear from his posts.
 

Dilan: "Bart is making the mistake that most conservatives make when reading the treason clause. It doesn't prohibiting giving enemies aid and comfort. It prohibits ADHERING to enemies, giving them aid and comfort. You can give them all the aid and comfort you want, as long as you don't adhere to them."

The Treason Clause states: "Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."

As to the bolded phrase in that clause, the Supremes in Cramer v. United States noted:

This clause was discussed on August 20, 1787. Mr. Madison, who opened the discussion, 'thought the definition too narrow. It did not appear to go as far as the Stat. of Edwd III. He did not see why more latitude might not be left to the Legislature. It wd. be as safe in the hands of State legislatures; and it was inconvenient to bar a discretion which experience might enlighten, and which might be applied to good purposes as well as be abused.' 31 Mr. Mason was in favor of following the language of the Statute of Edward III. The discussion shows some confusion as to the effect of adding the words 'giving them aid and comfort,' some thinking their effect restrictive and others that they gave a more extensive meaning. However, 'Col Mason moved to insert the words 'giving (them) aid comfort', as restrictive of 'adhering to their Enemies, &c'—the latter he thought would be otherwise too indefinite.' The motion prevailed.

In sum, insertion of the term "giving them Aid and Comfort" was meant to limit and define what was meant by the preceding term "in adhering to their Enemies." When you intentionally provide aid and comfort to an enemy, you are adhering to them.

Thus, I find it difficult to see how intentionally publishing classified information concerning an enemy, which you know will reach the enemy, can be anything other than intentionally providing aid and comfort to that enemy.

If Soviet spy Aldrich Ames published classified information in the NY Times rather than providing it directly to his KGB handler, would he be any less guilty of providing the information to the USSR?
 

In response to mls, I am not taking a position one way or the other. Rather, my focus is on this text:

" ... and for any Speech or Debate in either House, they shall not be questioned in any other Place."

This may suggest that the member of Congress engaged in speech or debate may be _questioned" in his/her house but not any other Place. So what constitutes questioning? Does it include being ousted from office, fined, jailed? Rules of the applicable houses are of course important. But so is the member of Congress' right (privilege) under the Speech and Debate clause, especially if matters of conscience are involved. I'm interested in how "history" would be used to address the hypo that involves the fairly recently evolved national security state. Can originalism - any version - provide the answer? And don't forget the First Amendment and the Pentagon Papers cases.

I'm not locked into a theory. Rather, I'm looking for more speech and debate, as the text of the Constitution does not provide a clear answer.
 

"For now we see through a glass, darkly"


 

With respect to the constitutionality of actions by Congress (whether statutory or by "House" rules) in connection with the hypo of this post, they may be tested facially or as applied, provided there is a case or controversy, standing and/or whether political (including national security) issues might make SCOTUS shy away from addressing a challenge. Oh for those early days when the Constitution provided a bright reflection, clear to all, with very little doubt. But that didn't last very long. Are the days getting shorter constitutionally?
 

This short period of clarity ... was it between the writing of the Federalist and Hamilton and Madison writing competing op-eds during the Washington Administration?
 

The short period ended with my buddy Ben Franklin's speech following the enactment of the Constitution by the Convention:

http://press-pubs.uchicago.edu/founders/documents/a7s3.html

"A constitution saved is a constitution earned?"

Maybe Ben was wearing sunglasses that were not rose colored.
 

Shag- I have attempted to answer your questions in my latest post at Point of Order. Perhaps you can encourage Professor Ackerman to re-engage in this debate that he has started.
 

mls' recent post at his Point of Order blog is well worth a read, including perhaps by Prof. Ackerman. I do not know Prof. Ackerman and have no means of getting him to address mls' points. The "history" from the sense of original meaning of the clause is sparse. The issue raised by the hypo of Prof. Ackerman's post is of more recent vintage, including post-Pentagon Papers and post-9/11. It is not clear to me that mls' blog post addressed the points on constitutionality that I raised in my comment of 7:53 AM that was NOT addressed to mls. Matters of conscience may be too important to go through the internal congressional steps that may take too much time to resolve, at least in a satisfactory manner, in matters of national interest.

I'm all for keeping the discussion going but I'm not only getting longer in the tooth but also shorter in the step. So perhaps others, including Prof. Ackerman, may step in. I do plan to follow up on mls' reference to Sen. Pickering in the early 19th century, especially to consider the matter of conscience issue.
 

Thanks, Shag.
 

Perhaps it is worth digging into Sen. Mike Gravel's reading of the Pentagon Papers (in part) at a session of his Senate subcommittee to contrast with Sen. Pickering in 1811.
 

"Our position is that even though Senator Gravel may have violated Senate rules, and even though he may have acted improperly, that is a matter for the judgment of the Senate, and no other power in our Government has the right to make any official pronouncement on that subject."

Senator Sam Ervin, arguing for the Senate as amicus curiae in US v. Gravel
 

Bart, let's just say that I don't think there's any constitutional law professor in America who seriously thinks that the purpose of the "aid and comfort" language was to define all "aid and comfort" as "adherence". That's just bats.
 

Quite a bit of history on the Speech or Debate clause is set forth in the decision of the Court in Gravel v. US as well as in dissents. The times provide a lot more history not reflected in the decision/dissents. Watergate followed closely behind. The public interest was affected in serious ways. It took several years for the county to recover from the impacts of the Vietnam War. Then 9/11, followed by the Patriot Act(s), two wars and the NSA situation faced today. Serious business serious history.

Sen. Irvin's position is well taken. Key words include Gravel "... may have violated Senate rules, ... he may have acted improperly ...." "May"! The Court did not rule on this. The Court did not address what the Senate could or should do. The Court did not address what actions the Senate might take would be proper under the specific circumstances of Gravel's actions within the Speech or Debate clause. Was the role of Congress during the Vietnam War being thwarted by the Executive? Is so, issues of conscience would be raised.

What action, if any, did the Senate take against Gravel? That's part of the history also. Yes, a member of Congress utilizing the Speech or Debate clause for a matter of conscience may have to answer to his house. But there is a process, and it can be - perhaps is - political such that the Court might not mess with it. But the severity of the action that might be taken may possibly be challenged as unconstitutional on an as applied basis on all of the facts and circumstances.
 

Correction: First word of last sentence of the second paragraph of my preceding comment should be "If".

Query: Has the phrase "shall not be questioned" in the Speech or Debate clause been compared to a similar phrase in the 14th Amendment's public debt clause? What does adoption history (respectfully 1789 and 1868) tell us about the original meanings of these phrases? This comes to mind from my recent read of Jack Balkin's draft article "The New Originalism and the Uses of History," a most interesting article. Even more interesting was that Jack's article led me to Alfred H. Kelly's 1965 article "Clio and the Court: An Illicit Love Affair," that addresses and analyzes "law office history" in great detail and the "aboriginal" meaning of the Constitution. (A cite is provided at the end of footnote 1 of Jack's article.) Kelly is a historian. In the past several years I have read several articles by historians critical of "law office History" but Kelly's says it all. So the "uses of history" seem to have been a problem with constitutional interpretation/construction from day one. While Jack's article mentions "law office history," he does not dwell on it - he doesn't have to as Kelly does a great job. Jack does stress the need for lawyers to use history in constitutional arguments, pointing out that memories of history change over time. He closes his article:

"Those who will not deign to speak in the name of tradition and cultural memory will have tradition and cultural memory deployed against them."

Is this a variation of "Use it or lose it"? In due course can we expect constitutional scholars/lawyers to utilize historians as back-up on "uses of history"? Might this taint such historians? Or is the adversary system of law such that "Law office history" will be the norm, if it isn't already?

I recommend a read of Jack's article and Kelly's as well.
 

Intelligence James Clapper lied under oath at a public hearing in March. This is a crime, and yet the White House continues to back its DNI
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