Article 1, Section 6 of the Constitution establishes an absolute free-speech right for members of Congress on the floor or in committee, even if they are disclosing classified material. It states that “for any Speech or Debate in either House, they shall not be questioned in any other Place.”
Within hours of Colorado Senator Mark Udall losing his reelection bid last week, transparency activists were talking about how he should go out with a bang and put the Senate intelligence committee’s torture report into the congressional record. The report is said to detail shockingly brutal abuse of detainees by the CIA during the George W. Bush administration, as well as rampant deception about the program by top officials. But the Obama White House is refusing to declassify even a summary of the report without major redactions. And Republicans take over the Senate in January.
Udall is one of two senators — along with fellow Intelligence Committee member Ron Wyden — who have consistently demanded greater transparency from the intelligence community. If he made the report public on the Senate floor or during a hearing, he couldn’t be prosecuted.
The last time any senator did anything nearly so grand was in 1971, when Mike Gravel, two years into his 12 years representing the state of Alaska, entered 4,000 pages of the Pentagon Papers into the congressional record just before the U.S. Supreme Court lifted an injunction on publishing them in the press.
Now, Gravel is urging Udall to join the club.
“If Udall wants to call me, I can explain this to him,” Gravel, pictured above, said in a phone interview from his home in Burlingame, Calif.
Gravel’s recommendation: “What he’d have to do is call a subcommittee meeting like I did, late at night.”
Back in 1971, Gravel first tried to read the Papers from the Senate floor. He even got himself rigged up with a colostomy bag so he wouldn’t need to take breaks. But he was stymied by an unexpected procedural move.
So he moved to Plan B: He called a late-night subcommittee meeting with almost no notice to the other members.
Gravel read some of the Pentagon Papers out loud, but challenged by dyslexia and overcome with emotion, he finally opted for another way: “I asked for unanimous consent to put it in the record of the subcommittee. And there was no one there to object.”
Here is amazing unedited footage of that night:
Once the Papers were officially in the record, Gravel handed out copies to reporters.
“If Udall wanted to do this, he could do the same thing.” Gravel said. “Hell, I’d fly into Washington and help him pass it out.”
If it’s more convenient, Gravel said, he’ll be in Udall’s home state of Colorado in a couple weeks. “If he wants to, we can get together over Thanksgiving weekend, and talk this thing out so he feels comfortable.”
The two biggest reasons not to do it, Gravel said, are no longer relevant. “The biggest fear you have is peer pressure. What are my members of the Senate going to think of me? But I’ve got to say, if you lose office, like he has, he’s got no more peer pressure.”
Similarly, Udall would no longer have reason to fear Senate discipline. Although the Constitution’s Speech and Debate Clause renders members of Congress immune from executive-branch penalties, the Senate itself has rules that make disclosing classified information punishable by “censure, removal from committee membership, or expulsion from the Senate.”
Colorado voters have already expelled Udall, Gravel said. “And this would give him a real political legacy.”
Like Gravel before him, Udall chairs a subcommittee. In Udall’s case, it’s the Armed Services Committee’s Subcommittee on Strategic Forces.
The Senate’s rules on scheduling hearings are exactly the same as they were in 1971: Committee and subcommittee chairmen are required to give a week’s notice when they schedule a hearing — “unless the Committee or subcommittee determines that good cause exists for beginning such hearings at an earlier time.”
People who understand Senate rules far better than I say that, even if Udall’s fellow senators challenged the official status of such a hearing, the worst they could do is make him pay the official Senate stenographer out of his own pocket. The record would still be the record.
The specific rules of Udall’s Armed Services Committee state: “Hearings may be initiated only by the specified authorization of the Committee or subcommittee.” Presumably the subcommittee chairman’s authorization would be sufficient — but Armed Services Committee lawyers refused to interpret that for me.
Should Udall not want to go the late-night stealth subcommittee route, he could also strap himself up with a colostomy bag and take to the Senate floor.
Being recognized for an unlimited period requires picking the right time: when there are no procedural roadblocks. But it’s doable, especially during the dog days of the lameduck session.
One big advantage of taking the subcommittee route is that Udall could introduce the whole 6,000-page report, rather than just the 480-page executive summary — or less, if he runs out of steam.
Whether a member of Congress is on the floor or in a committee meeting, submitting written statements to the record requires “unanimous consent”. That’s normally a pro-forma measure. But it probably wouldn’t be in this case.
Without unanimous consent, as Gravel put it, “then you’ve got to read it; you’ve got to read the whole thing.”
The Senate Intelligence Committee, chaired by Democrat Dianne Feinstein, voted to release the executive summary of the torture report in April. The holdup now is that the White House, acting on behalf of the CIA, is refusing to declassify the it without making redactions that Senate Democrats say would leave it extremely hard to follow and missing key supporting evidence.
Feinstein and her staff have reportedly been making some progress in getting the White House to “unredact” some of its redactions.
But Obama administration officials are still insisting on obscuring key facts. Case in point: they continue to demand that all the pseudonyms be blacked out. As Wyden explained in a statement last month:
This report is about mistakes, misdeeds and falsehoods that were repeated over a period of years. If you don’t know whether they were repeated by different officials each time, or by the same officials over and over, you really don’t know the full story. A lot of officials are intent on burying the full story, but getting the truth out is the only way to keep all of this from happening again.
Also redacted: copious supporting evidence that Feinstein has said is necessary to sustain the report’s findings.
The Chicago Tribune reported today that the summary’s release is “expected” sometime in the next few weeks — but we’ve been hearing that for months. And Republicans, who are deeply critical of the report’s findings, are taking over in January.
Udall has consistently pressed for its release with minimal redactions.
He along with Wyden had also publicly hinted at the shocking breadth of government surveillance before it was exposed by former NSA contractor Edward Snowden. But they stopped short of truly spilling the beans.
Some constitutional scholars have been urging members of the legislative branch to take advantage of the Speech and Debate clause more often.
Josh Chafetz, a Cornell Law School, wrote in the Harvard Law Review recently:
[G]iven the extent to which executive branch secrecy determinations are made to advance executive branch interests, there is no reason for Congress to offer automatic deference to those determinations.
And in the current circumstances, he wrote:
[I]f Senators Wyden and Udall have not attempted to invoke the disclosure procedures, then an explanation should be demanded of them. They obviously believe that disturbing information is being withheld, and they obviously are frustrated — a frustration that appears to be shared by members of both parties and both houses — by what they see as a pattern of lies from the executive branch. Where is the Gravelian spirit?
Yale Law professor Bruce Ackerman wrote:
Wyden should no longer content himself with telling us that the administration is misrepresenting the facts. He should instead let Americans know the truth, even at the cost of revealing some classified information presented to him in secret sessions.
Wyden told Rolling Stone last year:
There are very significant limits [on what you can and cannot say], and they are very cumbersome and unwieldy. If you want to play a watchdog role, you try to work within the rules. This is a sensitive subject. A lot of people have just said to me, “Well, you feel so strongly about [these issues] – when you knew this, why didn’t you just go to the floor of the United States Senate and just, you know, read it all [into the record]?” And, of course, anybody who does this kind of work thinks a lot about that. You think about it all the time. I can see why plenty of people would criticize me – progressives and others. I can understand why plenty of people who have views similar to mine would say they would have done it differently.
Udall’s office did not respond to a request for comment.
In June 2013, with a reelection battle ahead, Udall declared that when it came to exposing the administration’s surveillance policies, “I acted in every possible way short of leaking classified information. I’m not going to do that.”
But with so little left to lose now — and so much to gain — perhaps he’s ready to rethink that.
Photo: Alex Wong/Getty