Comments (36)

zotz wrote on December 10, 2007 3:08 PM:

note that Sen. Whitehouse implicitly invoked the Speech and Debate Clause by choosing to make his comments on the DoJ last week from the floor, not in a press release. Covering himself in case anyone challenged the nature of what was released.

EdNSted wrote on December 10, 2007 3:09 PM:

Yeah, perhaps in some alternate universe..

rmwarnick wrote on December 10, 2007 3:21 PM:

I've often wondered if the so-called "Terrorist Surveillance Program" was called that during the years it was kept secret, or if the propagandistic name was slapped on after Bush admitted violating the law?

Publius wrote on December 10, 2007 3:25 PM:

Reference should be made to Executive Order 12958, which governs classification. It explains the process. You may want to make particular note of Section 1.8 (which prohibits some classification decisions) and Section 1.9 (which provides for classification challenges -- it would be worth finding out if any have been brought, and if so, by who, and with what outcome)

A word of caution -- do not so quickly denigrate classification decisions, particularly by intelligence professionals. In many cases their efforts are done in good faith, and in keeping with the highest standards of the profession.

Also, note that the categories of potentially classified information outlined in 12958 speak to what a revelation could lead to. So "sources and methods" could be revealed directly or indirectly. It is always worth the thought experiment of imagining if the information had been obtained by a journalist from a whistleblower (think Watergate); that whistleblower (and others in the future) certainly fears having his or her name revealed; but sometimes the information provides itself would expose the source.

In short, the craft of intelligence, and that of journalist, often are more alike than one would think. And both, in my view, are necessary to the survival of the republic.

Finally, Dr. Aftergood is basically correct. If an authorized recipient of classified information embodies that information in a new form (i.e., a letter), that new document should be classified as well.

danger wrote on December 10, 2007 3:29 PM:

Crappy MSPAINT images always do the best job in getting the point across. Well done.

ericblair wrote on December 10, 2007 3:41 PM:

I can't understand how Congress submitting to the Executive branch classification rules doesn't raise separation of powers issues here. Obviously, they could just change the relevant statutes, but they seem to be content to cave in to the POTUS on this.

Really, Congress should have their own internal clearance process, and what they do with classified information in their possession should be up to them as a coequal branch of government. They should guard it with due care, but shouldn't be taking orders from POTUS.

Another note about EO 12958: it's explicitly against regulations to classify information to conceal illegal acts. I don't know why this isn't brought up more often.

djrichard wrote on December 10, 2007 3:51 PM:

So the playing field is tilted in favor of those who wield confidential information. Big deal. It still seems the Dems can exercize their responsibilities in spite of that.

If the dems did exercize their responsibilities, and they landed on the side of torture (waterboarding), then they're hypocrites for coming out against it later on. [It also lets us know where they stand, which may be good or bad :-p]

If the dems can't exercize their responsibilies, then it's a rigged game from the start, and the dems shouldn't have allowed themselves to be compromised. It's getting to be beyond "fool them once" on this score card.

If the dems abdicated in exercizing their responsibilities, then they don't belong in thoses positions.

Publius wrote on December 10, 2007 3:52 PM:

Ericlair raised an interesting point, about establishing an Article I (Congressional) classification regime. The problem, of course, is that most classified information is created by the functioning of the Executive Branch (Article II), and is provided to the Congress as part of the back/forth of interbranch relations. If Congress told the Executive Branch that information provided to them would be governed by a Congressional system, then the Executive Branch would provide less information. Yes (anticipating the response) Congress could pass legislation governing all classification, but that would push the Consitutional envelope probably more than can be expected at this time.

A careful, comprehensive, push by the Congress to question whether existing rules (i.e., 12958) are being correctly applied would probably be more effective (although I will admit, a bit more boring that interbranch fireworks).

Which leads to an important point in this, and related, issues: the actual practice of conducting oversight can be tedious, highly technical, and often rather boring. It certainly does not make good press.

Doc Rock wrote on December 10, 2007 3:56 PM:

With proper redaction most of the text probably should be releasable under FOIA.

moondancer wrote on December 10, 2007 4:10 PM:

Publius-

Isn't the problem when, as in the case of Plames book, the redaction or classification is clearly political or self serving and nothing to do with nat'l security?

Anonymous wrote on December 10, 2007 4:21 PM:

It is important to measure classification decision (including redactions, such as in the case of Ms. Plame's book) against the rules set out in Executive Order 12958. Political expediency is not a valid reason to classify.

That said, one can imagine many situations where properly classified material also may be of political interest to someone in power -- nevertheless, it is still properly classified.

lostoption wrote on December 10, 2007 4:50 PM:

While it might be the case that the President could issue executive orders regarding that which is constitutionally his prerogative alone (Is there such actually?), can he on his own prescribe criminal penalties for the breach of his orders?

Is criminal law not within the exclusive purview of the Congress?

If this is the case, then isn't the power to mandate (and enforce) secrecy a power of Congress solely?

freepatriot wrote on December 10, 2007 4:53 PM:

They 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 returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

there ain't any ambiguity about it

they shall not be questioned in any other place.

kinda definitive to me

they shall not

what part of "shall not" seems undefined

looks like a direct prohibition to me

Anonymous wrote on December 10, 2007 4:58 PM:

Executive Order 12958 has no criminal penalties, and it is correct -- the President has not authority to issue criminal laws -- only Congress can do that. It is a crime to "leak" classified information only because the Congress has made it a crime.

So Congress, could, in theory, change the law to make it no longer a crime to release classified information, but that would be (in addition to being poor policy, at least in my view) politically impossible.

But Congress already has tremendous power -- they should just use it more effectively. For instance, often you will see Members of Congress, confronted with classified information, immediately ask to have it "declassified" -- often without have seen it. Congress can do a better job of asking for, carefully reviewing, and safeguarding classified information. If there is information provided to them they believe is not properly classified, they should push back.

The basic point is that there is a system of rules (look at the National Security of 1947, as amended, which governs Congressional oversight), and S.Res.400 (which establishes the Senate Select Committee on Intelligence).

Seth wrote on December 10, 2007 4:59 PM:

I laugh laugh laugh when I see all you liberal types
talk talk talk talk talk talk talk talk talk talk talk talk talk talk .

When strong christain repubs ACT.

Huck is surging and all your don't act just talk retoric can't stop him because he is an up front believer and you all are just stand in the background talkers.

Anonymous wrote on December 10, 2007 4:59 PM:

let me clarify a little

see that semicolon before this statememt: and for any speech or debate in either House, they shall not be questioned in any other place.

that semicolon makes the "speech and debate" protections universal

the can be NO investigation or arrest of a member of Congress, for any speech or debate the member gives in congress,except in congress

and with scooter libby and kkkarl rove tied around his neck, I doubt georgie porgie wants to raise the issue of treason

not that the charge from bush would matter anyway

but trust me, george don't wanna go there

Gene wrote on December 10, 2007 5:01 PM:

So who gave the order to declassify the existence of the tapes? Sure the press was going to tell the story, but that does not change the classification. Did Bush authorize Hayden to make his disclosure to the CIA? Why wouldn't a statement addressing the tapes be made to the public at the same time?

freepatriot wrote on December 10, 2007 5:06 PM:

hey seth, you're right

everything is just fine for the repuglitard, er, repuglican party

huckabee is the greatest human being since Jesus Christ himself

you just keep telling yourself that

but you might wanna start planing your story explaining how the repuglitards lost so badly in the 2008 election soon

I'll bet lush scumbag has his story written out already

don't get caught flat footed in the second week of next November

freetalktalktalkpatriot wrote on December 10, 2007 5:15 PM:

talk is cheap
I bet you "saying all this in 2000 and 2004.
Look whare that got you.

Publius wrote on December 10, 2007 5:23 PM:

It is not clear that a decision was made to declassify the fact of the existance of the tapes -- rather, the New York Times was told, by a source, of both the tapes existance, and their subsequent destruction. At that point a decision was made to acknowledge the existance of the tapes, although by who, it is not yet clear.

While it is probably true that the Speech & Debate clause would prevent the prosecution of a Member of Congress who released classified information on the floor (and perhaps even off the floor, given the right circumstances), it would probably be political suicide in most cases. Also, the fact that one cannot be prosecuted for violating a law does not diminish the fact that such an action would still be in violation of the law. So, one should be very careful (at a time where there is so much concern about lawlessness on the part of the Executive branch) before advocating a criminal act (even if not prosecutable).

lostoption wrote on December 10, 2007 5:31 PM:

Re: My earlier comment concerning President's disability from assigning criminal penalties, and Anonymous's following comment in agreement for the most part, but reminding that though Congress might remove criminal penalties, it would not necessarily be wise, and that they already have the power to do much to influence the course of events.

The Congress or certain relevant members thereof (referring particularly to Rockefeller) act as though they just don't have any choice, their hands are just tied.
You would think from listening to the jellyfish on Shieffer this past Sunday, that there was just nothing he could do about it. They act as if the President has laid down the law, and they just have to obey.

I bring up the notion that secrecy can only be imposed by the Congress in order to ever so slightly puncture this myth that the likes of the worthless Rockefeller allow to hover over our discourse -- that somehow, when it comes to secrecy you have to keep your trap shut if the "commander-in-chief" tells you to.

judyinnm wrote on December 10, 2007 6:02 PM:

So, Nixon's mistake was in not "classifying" information about his cimes. If he'd have just marked all his video tapes "CLASSIFIED" congress would have no evidence to impeach him.

Who said Bush is Nixon without the competence?

Anonymous wrote on December 10, 2007 6:30 PM:

This is starting to smell like, "Congress is (illegally) agreeing to be silent about war crimes."

- "Never again" from WWII/Nuremberg: What happened, Congress?
- What's the plan of the states to use their state-AG's to prosecute Members of Congress/VP/President for alleged complicity with war crimes?

If Hitler "classified" the evidence of the Holocaust, would that have made Nuremburg Trials impossible?

Thie arrogance by Congress is bringing dsicredit upon the House: This an alleged breach of the House rules requiring Members to act creditably upon the House. This performance falls well below that which the Public should reasonably expect of a "nation of laws". A nation of blunders.

moondancer wrote on December 10, 2007 6:33 PM:

Seth

I hear Huckleberry is considering a running mate from Bedrock, you know where people lived with dinosaurs when the earth was flat and the earth was the center of the universe. Do you think he'll bring back barbers as surgeons? And we could burn witches too. Your type is proof there is no God.

Anonymous wrote on December 10, 2007 6:36 PM:

Publius wrote on December 10, 2007 3:25 PM:

Small problem: EOs do not permit classificatdion of illegal activity. Read "ORCON".
- Or are you saying that "ORCON" rules can be "waived" without any lawful reason? If you are, they you're arguing for classification of war crimes evidence. That is illegal. Try again.

In 2001 the JAGs were warning DoD and DOJ personnel that the POW Working Group issues included the real risk that civilians could be prosecuted before the ICC for war crimes in re prisoner mistreatment:
- Who (a) provided the waiver to ORCON on the evidence Congress had related to prisoner abuse (to illegally "permit" classification of illegal activity); (b) told Congress to keep silent about war crimes evidence; and (c) did not permit any reviews of Geneva violations? There is no merit to the assertion that "nbodoy talked about this"?

We have separte branches of government. They are supposed to check to prevent abuse; they have become three branches of tyranny remaining silent about alleged illegal activity by the other two.
- When did Congress agree to become an Administrative arm of DOJ OLC?

Anonymous wrote on December 10, 2007 6:52 PM:

Publius wrote on December 10, 2007 5:23 PM

"Also, the fact that one cannot be prosecuted for violating a law does not diminish the fact that such an action would still be in violation of the law." The evidence before us suggests Members of Congress did not use all options; and had mental reservations about their oath; but had something other than their oath guiding them to inaction.

You're asking us to believe:

1. Silence In Re Alleged War Crimes

Congress knew about two things: That they had an oath to the US Constitution and Geneva; but despite that oath, they chose to remain silent about evidence of war crimes;

2. Questionable Loyalty, 5 USC 3331

Congress chose to remain loyal to an agreement to be silent about war crimes evidence; over their oath of office and requirement to discuss/oversee/investigate these alleged war crimes

3. Non-Disclosed Oaths by Members of Congress

Members of Congress, despite their oath to the US Constitution and Geneva, have a higher oath to secrecy about illegal violations of that Supreme Law.

Time to get this on the table:
- When did Congress agree to take an oath to this President that trumps their oath to the US Constitution/Supreme Law/Geneva?
- When did Members of Congress get confused about their oath of office;
- Why did Members of Congress not listen to the DoD JAG memoranda about these ICC-related issues;
- When did Members of Congress plan to put their oath to the US Constitution/Treaties/Geneva before their agreement to be silent  about alleged violations of that Supreme Law; and
- When did Members of Congress first learn the CIA IG was not adequately coordinating with the CIA Legal Counsel and Congressional Committees on these oversight issues in re prisoner treatment, Geneva compliance?
- How long did Members of Congress know about "other" classified things they are claiming "they didn't know" about: Eastern European detention, American warrantless surveillance program, transfer of American civilians for abuse because of (invalid, illegally captured) FISA-captured information?

US government (Congress, Courts, Executive Branch) credibility is shot:
- What other illegal activity do Members of Congress know about, have been briefed on, but aren't going to "investigate for an impeachment" because of "other things" the public hasn't been told about related to "other" illegal activity?
- What's the plan of the Special Prosecutors/State AGs to target Members of Congress, not just the Executive Branch personnel, with alleged war crimes in the form of indictments: Member of Congress alleged complicity/silence in re Geneva violations, 5 USC 3331?
- Where are the indictments against individual members of Congress for this alleged breach of their 5 USC 3331 oath of office;
- What is the plan to forward this evidence to the ICC for prosecution of these and former Members of Congress/Executive Branch personnel/ Judicial officers who have been allegedly complicit (failed to investigate where they had the duty to investigate) grave breaches of Geneva?
 
Inaction by this Congress, courts, and US president says one thing: Short of warfare, only the ICC and the States are going to check this US government' breaches of Geneva.

Time to discuss a new system of oversight that is going to ensure Congress, the President, and Courts have competent, timely oversight. Something that is responsive. Not this cess pool.

Captain Dan wrote on December 10, 2007 7:12 PM:

If disclosures of crimes by members of congress are not protected by the “Whistle Blowers Act”, congress should pass a law protecting its members from criminal liability for exposing suspected crimes during sessions of congress.

regular lurker wrote on December 10, 2007 9:10 PM:

What is the penalty for violating the Geneva Conventions? How is that penalty enforced and who is culpable?

Bill wrote on December 10, 2007 9:43 PM:

Dems and Repugs are all criminals.
Washington DC needs to see a big, big mushroom cloud over it to sterilize the stench from the city.

tr wrote on December 11, 2007 12:53 AM:

bush probably sent goss to the cia to clean things up. i'm still waiting for the rockefeller follow up investigation into the reasons used to invade iraq.

Anonymous wrote on December 11, 2007 1:30 AM:

What criminal statute would it violate, pub? & why not pass a law imposing some checks on a system that has become obviously corrupt & an ongoing scandal to democratic accountability. Add this to the list of reasons I don't find you actually ready to "face Vader" at all

Al in Austex wrote on December 11, 2007 4:53 AM:

Bill .,
Kindly refrain from any rhetoric that involves nuking DC- this unfortunately is a right wing talking point - we face a "NUCLEAR IED 'd" future.. you know the "so be afraid & vote for Daddy nEO CON to keeep us safe" talking point ..
( Unless of course Bill you are a Troll.)
And Seth I was wondering if you & Huckleberry had money budgeted for "isolating" all the godless liberals who had contracted HIV - and would that isolation round up be conducted by Blackwater on a no bid basis after Prince and the other Revelation Brownshirts had contributed heavily to your campaign??!! - Thats how it works Seth - give money to the crazy nut jobs running for office and get huge ROI's from the largesse of the corrupt politicians you help elect ...
BTW we are hoping and praying that Congressman "Freezer " Jefferson Democrat from Louisiana will soon be a cellmate for the Dukester ..

Anonymous wrote on December 11, 2007 5:32 AM:

"Apparently then-Sen. Mike Gravel (D-AK) used the clause to enter the Pentagon Papers into the Congressional Record."

Not apparently, he did. Into the record of his Natural Resources subcommittee. I have the green volumes that were printed as a result in my office (the so-called "Gravel Edition").

Since Bush&Co are so concerned about constitutional powers, I think a constitutional assertion of COngressional power is in order -- in the Speech&Debate clause and in the Congressional power to declare people in contempt. Just because it has been dormant since the 1930s doesn't mean it cannot be utilized.

Anonymous wrote on December 11, 2007 8:06 AM:

I am not arguing that Congressmembers have taken a higher "oath" to maintain secrets; only that there are a series of regulations (Executive Order 12958) and laws (governing handling of classified information) that govern. There are a number of avenues Congress can use if they want to use classified information; including, of course, the option to violate existing law. I am just arguing that in a time where the Executive Branch seems to find any law-based framework that is inconvenient inapplicable, that Congress (and citizens) should try to address these issues without immediately throwing the rules overboard.

As for the point about ORCON -- ORCON is not a classification; it is a handling instruction. It means "Originator Controlled," and simply requires a recipient of classified information to ask permission of the originator before passing it to a third, cleared, entity or person. It does not at all change the equation in this situation.

What is at stake here is, if possible, more important than the question of whether we have engaged in torture (which is significant on its own) -- it is whether we live in a system governed by law. We have a system that has worked (rather) well for more than 200 years. It is often painful, messy and inefficient. But I urge consideration of its remaining value, and thus hope that in the swirl of events surrounding this administration that citizens will insist on adhering to the law.

I would prefer not to see dramatic, symbolic, efforts, such as releasing classified information to test the Speech & Debate Clause's meaning and reach. Putting aside that the information may be properly classified, and that we may find the Courts have a narrower idea of the Clause's meaning: that would transform a discussion of how America makes decisions, and how, and when, we engage in torture, into a debate about the Speech and Debate clause. I don't think that is a good thing.

melior wrote on December 11, 2007 4:00 PM:

"I've often wondered if the so-called "Terrorist Surveillance Program" was called that during the years it was kept secret, or if the propagandistic name was slapped on after Bush admitted violating the law?"

The program's original name was Committee to ReElect the President.

michael72 wrote on December 12, 2007 4:14 AM:

why do all the cards in this National Security State game always seem to come from the hand of the president and/or the intelligence agencies.

only one real question, where's the beef? i mean the oversight??

and perhaps there's something in those letters by harman and rockefeller that they don't want to see published either - i assume that they share complicity and could have done something - anything - to prevent this torture or bring it to the public's attention. quite hiding behind the ya mamma's skirt y'all and come out and tell us the truth of what ya knew how ya knew it and why ya didn't stop it. (and they know goddamn well that toture is immoral and illegal.)