an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The President announced yesterdaythat the Executive branch has now provided to the Senate Select Committee on Intelligence a partially declassified version of the Executive Summary of the SSCI’s report on the CIA Rendition, Detention and Interrogation Program, together with the findings and conclusions of the Committee majority. In his remarks, the President said the following:
[W]e did some things that were wrong. And that’s what that report reflects. And that’s the reason why, after I took office, one of the first things I did was to ban some of the extraordinary interrogation techniques that are the subject of that report. [M]y hope is . . . that this report reminds us once again that the character of our country has to be measured in part not by what we do when things are easy, but what we do when things are hard. And when we engaged in some of these enhanced interrogation techniques, techniques that I believe and I think any fair-minded person would believe were torture, we crossed a line. And that needs to be . . . understood and accepted.And we have to, as a country, take responsibility for that so that, hopefully, we don’t do it again in the future.
As I explained back in April, apparently it is now up to Chairman Feinstein whether and when to make the declassified version of those documents public. In a statement last evening, Senator Feinstein wrote: “A preliminary review of the report indicates there have been significant redactions. We need additional time to understand the basis for these redactions and determine their justification. Therefore the report will be held until further notice and released when that process is completed.”
Director of National Intelligence James Clapper also issued a statement on the redactions:
More than 85% of the Committee Report has been declassified, and half of the redactions are in footnotes. The redactions were the result of an extensive and unprecedented interagency process, headed up by my office, to protect sensitive classified information. We are confident that the declassified document delivered to the Committee will provide the public with a full view of the Committee’s report on the detention and interrogation program, and we look forward to a constructive dialogue with the Committee.
Since the summary is approximately 480 pages, 15 percent could mean upwards of 70 pages of redactions.
Senator Mark Udall is reported to have said that he will work with Sen. Feinstein to “declassify” the findings “to the fullest extent possible, correct the record on the CIA’s brutal and ineffective detention and interrogation program, and ensure the CIA learns from its past mistakes.” Senators do not have the authority to declassify anything (and, in any event, it is an SSCI Rule, not the executive’s classification, that prevents SSCI members from disclosing the redacted portions).
Presumably Sen. Udall means either that he will work to persuade the executive branch to declassify more of the summary and findings, or that he will make efforts to have them published regardless of classification.
In my earlier post, I discussed what the SSCI majority’s options would be if it concludes that some of the still-classified, still-redacted information ought to be made public. That discussion is copied below. Short version: Pursuant to the SSCI’s own rules, which require the committee members to act in accordance with Section 8 of S. Res. 400 of the 94th Congress, if the committee votes to make public any excerpts that remain classified, that would place the onus on the President himself to “personally in writing, notif[y] the committee that he objects to the disclosure of such information, provide his reasons therefore, and certif[y] 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.” If the President were to do so, the rules provide that the committee could not make public the still-classified portions unless it secured a majority vote of the Senate authorizing that action.
What would happen [if] the President declines to declassify portions of the documents, and the SSCI disagreed with that determination and concluded that the information in question could safely be disclosed to the public? In that event, could the SSCI lawfully publish such information, notwithstanding that it remained classified?
That question appears to divide the two branches. On the one hand, a February 28, 2014 Declaration of the CIA Director of the Office of Congressional Affairs reported the Executive branch’s view that “the SSCI would be required to submit its Report for a declassification review before it could publicly release the Report,” and that “[o]nce that declassification review was completed, the SSCI would retain the sole authority to publicly release that declassified version of the Report with the necessary redactions” (emphasis added). Similarly, in a recent filing in a FOIA case, DOJ expressed the view that “classification review” is a “necessary precursor to public release.”
It is not obvious what the basis might be for this Executive view that the SSCI, or Senator Feinstein, could not publicly disclose classified information. There is, for example, no criminal statute that generally prohibits anyone and everyone–including Senators–from publishing classified information of this sort. And even if there were, prosecution of Senators for publishing their report would almost certainly violate the Speech and Debate Clause. SeeGravel v. United States, 408 U.S. 606, 624 (1972) (“committee reports are protected”); id. at 615 (“incontrovertible” that Speech and Debate Clause protects Senator from criminal culpability for having introduced classified information “into the public record” at a subcommittee hearing).
Nor does the President’s executive order on classification do the work of imposing constraints on the SSCI’s publication. That E.O.’s principal function is to direct executive branch officials about how they are to classify and declassify information and documents. It does not purport to itself restrict anyone, let alone legislative authorities, from disclosing classified information. (Subsection 4.1(a)(2) of the E.O. does provides that “[a] person may have access to classified information provided that . . . the person has signed an approved nondisclosure agreement.” And subsection 4.1(e), in turn, provides that “[p]ersons authorized to disseminate classified information outside the executive branch shall ensure the protection of the information in a manner equivalent to that provided within the executive branch.” It is therefore possible, I suppose, that the Executive branch only permitted the SSCI to see the underlying CIA documents on the condition that the members of the SSCI, including the Chairman, signed nondisclosure agreements, which would contractually prohibit them from publishing classified information derived from such documents unless and until the President has declassified it. It’s not clear, though, what the enforcement mechanism of such an agreement would be with respect to Senators; and, in any event, I would be very surprised if Senator Feinstein agreed to sign such a nondisclosure agreement.)
The Senate’s view, by contrast, is that it is up to the Committee, and ultimately the Senate, whether or not to publicly disclose information that the President chooses not to declassify. The Feinstein/Bond letter from 2009, for example, articulated the SSCI’s view that the “disposition and control” of any reports “lies exclusively with the Committee.”
Indeed, it appears that the source of any limitation on the SSCI’s ability to disclose classified information is not a statute or an executive order, but instead Rule 9.7 of the Committee’s own Rules, which provides that “[p]ublic disclosure of classified information in the possession of the Committee may only be authorized in accordance with Section 8 of S. Res. 400 of the 94th Congress.” (This prohibition presumably helps to ensure that the Senate complies with 50 U.S.C. 3091(d), which requires each house to “establish, by rule or resolution of such House, procedures to protect from unauthorized disclosure all classified information, and all information relating to intelligence sources and methods, that is furnished to the intelligence committees or to Members of Congress under this subchapter.”) This internal constraint on the ability of the SSCI to disclose classified information does not implicate the Speech and Debate Clause, which provides that members of Congress may not “be questioned in any other Place” for their Speech or Debate.
According to SSCI Rules, therefore, the Committee can disclose classified information only in accordance with Section 8 of S. Res. 400 (94th Cong. (1976), as amended), which is included as Appendix A to the SSCI Rules. Section 8 provides that the SSCI may, by a majority vote, decide to publicly disclose classified information. But if it votes to do so, it must notify the President; and if he objects 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, then the Committee, or the Senate Majority and Minority leaders jointly, may refer the question of disclosure to the full Senate for consideration . . . at which point it would be up to the Senate as a whole whether to authorize the SSCI to publish the classified information. (At the end of this post I set out in full the pertinent part of Section 8.)
By all accounts, this Section 8 process, for cases in which the SSCI and the President cannot agree about the propriety of disclosing classified information, has very rarely been invoked since it was promulgated in 1976, and I’m not aware of any cases that have proceeded all the way to a Senate vote. It is understandable why the SSCI would be wary of establishing such a precedent. Among other things, such a conflict would likely make the Executive branch more reluctant to share classified information with Congress (except as the law requires).
It is therefore not surprising that, as noted above, the SSCI did not invoke Section 8 in its vote [on April 3, 2014 in favor of a motion offered by the Chairman to send an updated Findings and Conclusions and an updated Executive Summary of the Committee’s Study on the CIA’s Detention and Interrogation program to the President for the purpose of declassification to be performed by the Executive branch]. Instead, the SCCI has in effect asked the President to offer his views in the first instance as to whether there are any parts of the Executive Summary and Findings and Conclusions that should not be disclosed because of possible harm to national security. This procedure will likely avoid the need to trigger the possibly adversarial and contentious Section 8 process, which was designed only for the rare case in which the SSCI and the President reach an impasse, not for the mine run of cases in which they are able to negotiate a compromise. See 122 Cong. Rec. 13982 (1976) (remarks of Sen. Church). [UPDATE: Steve Aftergood identifies another option that the SSCI might have to resolve any impasse, short of invoking the Section 8 process.]
If the President concludes that the SSCI has already redacted the information that needs to remain classified, or if Committee does not object to further redactions of any information that the President concludes should remain classified, then there will be no occasion to invoke Section 8, and no need for a debate about the Senate’s power to authorize its own disclosure of classified information. If that is what occurs, then the Executive Summary and Findings and Conclusions will contain only “committee sensitive information,” rather than classified information . . . and Section 9.7 of S. Res. 400 permits the disclosure of committee sensitive information to persons outside the Committee “with the prior approval of the Chairman and Vice Chairman of the Committee, or the Staff Director and Minority Staff Director acting on their behalf.” Last Thursday’s vote appears to have included such necessary prior approval, since Senator Chambliss, the Vice Chairman, supported the Chairman’s motion.
S. Res. 400, section 8:
(a) The select committee 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. Whenever committee action is required to disclose any information under this section, the committee shall meet to vote on the matter within five days after any member of the committee requests such a vote. No member of the select committee shall disclose any information, the disclosure of which requires a committee vote, prior to a vote by the committee on the question of the disclosure of such information or after such vote except in accordance with this section.
(b)(1) In any case in which the select committee votes to disclose publicly any information which has been classified under established security procedures, which has been submitted to it by the Executive branch, and which the Executive branch requests be kept secret, such committee shall—
(A) first, notify the Majority Leader and Minority Leader of the Senate of such vote; and
(B) second, consult with the Majority Leader and Minority Leader before notifying the President of such vote.
(2) The select committee may disclose publicly such information after the expiration of a five-day period following the day on which notice of such vote is transmitted to the Majority Leader and the Minority Leader and the President, unless, prior to the expiration of such five-day period, 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.
(3) If the President, personally, in writing, notifies the Majority Leader and Minority Leader of the Senate and the select Committee of his objections to the disclosure of such information as provided in paragraph (2), the Majority Leader and Minority Leader jointly or the select Committee, by majority vote, may refer the question of the disclosure of such information to the Senate for consideration.
(4) Whenever the select committee votes to refer the question of disclosure of any information to the Senate under paragraph (3), the Chairman shall not later than the first day on which the Senate is in session following the day on which the vote occurs, report the matter to the Senate for its consideration.
(5) One hour after the Senate convenes on the fourth day on which the Senate is in session following the day on which any such matter is reported to the Senate, or at such earlier time as the majority leader and the minority leader of the Senate jointly agree upon in accordance with paragraph 5 of rule XVII of the Standing Rules of the Senate, the Senate shall go into closed session and the matter shall be the pending business. In considering the matter in closed session the Senate may—
(A) approve the public disclosure of all or any portion of the information in question, in which case the committee shall publicly disclose the information ordered to be disclosed,
(B) disapprove the public disclosure of all or any portion of the information in question, in which case the committee shall not publicly disclose the information ordered not to be disclosed, or
(C) refer all or any portion of the matter back to the committee, in which case the committee shall make the final determination with respect to the public disclosure of the information in question.
Upon conclusion of the consideration of such matter in closed session, which may not extend beyond the close of the ninth day on which the Senate is in session following the day on which such matter was reported to the Senate, or the close of the fifth day following the day agreed upon jointly by the majority and minority leaders in accordance with paragraph 5 of rule XVII of the Standing Rules of the Senate (whichever the case may be), the Senate shall immediately vote on the disposition of such matter in open session, without debate, and without divulging the information with respect to which the vote is being taken. The Senate shall vote to dispose of such matter by one or more of the means specified in clauses (A), (B), and (C) of the second sentence of this paragraph. Any vote of the Senate to disclose any information pursuant to this paragraph shall be subject to the right of a Member of the Senate to move for reconsideration of the vote within the time and pursuant to the procedures specified in rule XIII of the Standing Rules of the Senate, and the disclosure of such information shall be made consistent with that right.