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State of play of the SSCI report on the CIA interrogation program: the relationship between declassification and disclosure

Last Thursday, Senator Diane Feinstein, the Chairman of the Senate Select Committee on Intelligence (SSCI), issued a statement that the SSCI had voted that afternoon “to declassify” a 480-page executive summary of the SSCI’s report on the CIA Detention and Interrogation Program, as well as 20 findings and conclusions of the Committee majority.  The Senator’s statement further explained that “[t]he full 6,200-page full report has been updated and will be held for declassification at a later time.”

This statement, and related news accounts of the SSCI vote, have led to some confusion about just what the Committee voted to do; about who has the final say on declassification; about who has the authority to publicly release the documents in question; and about the relationship between declassification and the authority to release the documents.  The confusion is compounded by the fact that the committee vote was taken in a closed session, and no transcript is available to the public.

In this post, I’ll try to clear up some of that confusion.  The upshot is this:  Although the Senate and the Executive appear to have a difference of views on whether the SSCI would have the lawful authority to disclose any information that remains classified, there is unlikely to be any need to confront that question with respect to the Executive Summary (ES) of the Report and the Findings & Conclusions (F&C).  The Committee’s 11-3 vote last Thursday–which was not to “declassify” the ES and F&C, but instead to send them to the President so that the Executive branch can declassify those documents–was an exercise in comity, designed to reach a consensus about what should be released, and thereby preclude any need to invoke the Senate’s process for dealing with cases in which the SSCI wishes to release classified information over the President’s objections.

Here’s a partial chronology that helps to explain what happened last week:

1.  In March 2009, the SSCI voted 14-1 to initiate a review of the CIA’s Detention and Interrogation Program.

2.  On June 2, 2009, SSCI Chairman Feinstein and Vice Chairman Bond wrote a letter to CIA Director Panetta, which (in conjunction with a responsive letter from Panetta) reportedly established the arrangements by which the SSCI would be enabled to review CIA documents relating to the Program.  (I believe those letters are not public, but parts of the Feinstein/Bond letter are described in a recent declaration of the CIA Director of the Office of Congressional Affairs.)  The Feinstein/Bond letter expressly stated the SSCI’s view that its work product, including any draft and final reports, would be “the property of the Committee,” and that the “disposition and control” of such reports, “even after the completion of the Committee’s review, lies exclusively with the Committee.”

3.  Over the next three-plus years, Committee staffers reviewed more than six million pages of CIA and other records, and wrote a report of approximately 6300 pages, with more than 35,000 footnotes.  According to Senator Feinstein, the draft report included details of each of the more than 100 detainees who had been in CIA custody, “the conditions under which they were detained, how they were interrogated, the intelligence they actually provided and the accuracy—or inaccuracy—of CIA descriptions about the program to the White House, Department of Justice, Congress and others.”  The report also included an executive summary and a list of 20 findings and conclusions.  Senator Feinstein stated that “I believe it to be one of the most significant oversight efforts in the history of the United States Senate, and by far the most important oversight activity ever conducted by this committee.”  Last Thursday, she further characterized the report as follows:

The purpose of this review was to uncover the facts behind this secret program, and the results were shocking. The report exposes brutality that stands in stark contrast to our values as a nation. It chronicles a stain on our history that must never again be allowed to happen.

This is not what Americans do.

The report also points to major problems with CIA’s management of this program and its interactions with the White House, other parts of the executive branch and Congress.  This is also deeply troubling and shows why oversight of intelligence agencies in a democratic nation is so important.

The release of this summary and conclusions in the near future shows that this nation admits its errors, as painful as they may be, and seeks to learn from them. It is now abundantly clear that, in an effort to prevent further terrorist attacks after 9/11 and bring those responsible to justice, the CIA made serious mistakes that haunt us to this day. We are acknowledging those mistakes, and we have a continuing responsibility to make sure nothing like this ever occurs again.

4.  On December 13, 2012, the SSCI voted 9-6 to approve the draft Report.  As for what would become of it, in her public statement that day Sen. Feinstein wrote that “[t]he report will remain classified and is not being released in whole or in part at this time.  The committee will make those decisions after receiving the executive branch comments” (emphasis added).   In a letter to the President the next day (included as Appendix C to this Declaration), Chairman Feinstein stated that she was submitting the draft report to Executive agencies, and asked the White House to coordinate those agencies’ suggested edits and comments.  “After consideration of these views,” she wrote, “I intend to present this report with any accepted changes again to the Committee to consider how to handle any public release of the report, in full or otherwise.”

5.  On June 27, 2013, the CIA provided its views to the SSCI, agreeing with parts of the Report, but disagreeing with and disputing other parts.

6.  According to Senator Feinstein’s statement last Thursday, “the committee staff . . . reviewed all comments by the CIA as well as minority views by committee Republicans and made changes to the report as necessary to ensure factual accuracy and clarity.”

7.   This brings us to the SSCI vote last Thursday.  Committee staff authorized to speak on behalf of the Committee described to me what occurred as follows:  “On April 3, 2014, the Committee voted 11-3 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.  The report itself was approved by the Committee on December 13, 2012, by a vote of 9-6.   The Committee did not invoke Sec. 8 of S. Res. 400.”  (I’ll explain below the significance of the fact that the Committee did not invoke Section 8 of S. Res. 400.)  Chairman Feinstein’s motion on Thursday also made allowance for Committee members to prepare additional and minority views, to submit them to the Executive branch for declassification, and to have them released along with the Executive Summary and the Findings and Conclusions.

8.  On Monday, April 7, Senator Feinstein sent the Executive Summary and the Findings and Conclusions to the President, with a cover letter asking the President to declassify them “quickly and with minimal redactions.”  In that letter (which was first reported by McClatchy and by the Associated Press), Senator Feinstein also “respectfully request[s] that the White House take the lead in the declassification process.”  The letter further states that “[i]f Committee members write additional or minority views that they wish to have declassified and released as well, I will transmit those separately.”

9.  The “background” information appended to Senator Feinstein’s statement last Thursday indicates that once the Executive branch’s declassification review is completed, there will be a “subsequent public release” of the ES and F&C.  That formulation does not indicate who will be responsible for the “public release,” but my understanding, based upon discussions with staff authorized to speak on behalf of the Committee, is that Chairman Feinstein’s motion on Thursday itself specifically provided for the Chairman herself to publicly release the Executive Summary and the Findings and Conclusions following declassification.

* * * *

It is entirely possible that the President will agree with Senator Feinstein that all, or almost all, of the Executive Summary and Findings and Conclusions should be declassified.  He has publicly stated that “I am absolutely committed to declassifying that report as soon as the report is completed,” and that “[w]e will declassify those findings so that the American people can understand what happened in the past, and that can help guide us as we move forward.”  Moreover, according to Senator Feinstein, the Report itself (and therefore presumably the ES/F&C, too) already excludes or redacts “certain kinds of information, most importantly the true names of non-supervisory CIA personnel and the names of specific countries in which the CIA operated detention sites.”  Senator Feinstein also stated last Thursday that she hoped the declassification process could be completed in 30 days, and that she understood the White House to have said “they wanted to declassify exactly what we have moved to declassify.”  All of this suggests that the SSCI has already endeavored to draft the relevant documents with an eye toward scrubbing them of any information that must remain undisclosed.  So perhaps the Executive will prescribe no or few additional redactions.  Of course, it is also possible that the President will decline to declassify some of the information remaining in the ES and/or the F&C, and that the SSCI will concur in the President’s judgment that such remaining classified information should not be disclosed.

The SSCI’s objective here presumably is to facilitate one of those two consensus outcomes.

* * * *

What would happen, however, in the unlikely event 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.  See Gravel 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 last Thursday.  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.

 

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About the Author

is a Professor at the Georgetown University Law Center.