Speech and Debate

Michael Froomin says I was wrong to say that it would require an act of civil disobedience for a member of congress in possession of secret information about illegal activity to disclose it, since a member in such a position could use the privilege contained in the "speech and debate" clause to disclose what needed disclosing. My general sense is that the speech and debate clause is one of those things prone to misinterpretation by laypeople, but Froomkin's a law professor so presumably he knows what he's talking about.

In a larger ethico-political sense, presumably the purpose of congressional briefings on classified matters is precisely that if the veil of classification is being used to obscure illegal conduct the briefed member will act to disclose and/or halt the conduct. In practice, the function of the briefings seems to have become ensnaring members in complicity while granting them a pretext for not doing their job ("I knew, but it was secret!). But this makes no logical sense. If members of congress aren't supposed to speak up when they become aware of secret crimes and abuses of power, what's the point of them having them in the loop in the first place?

Comments

If members of congress aren't supposed to speak up when they become aware of secret crimes and abuses of power, what's the point of them having them in the loop in the first place?

Which brings us back around to why the founders, in their wisdom, gave blanket immunity to congress-members for anything they might say in their chamber. It'd be nice if people other than law professors paid attention to this stuff, like, for instance, Senators and Representatives.

Posted by southpaw | December 10, 2007 9:27 AM

"...what's the point of them having them in the loop in the first place?"

Well, as near as I can tell, these days the main "point" of being in Congress is just to take (small) bribes, while stocking up on chits which can later be redeemed for (large) bribes after leaving office.

All this nonsense about using Hearings and such could obviously interfere with these important tasks...

Posted by RKU | December 10, 2007 9:28 AM

And just for the record:

Article 1, Section 6

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. 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.

Matt says, "My general sense is that the speech and debate clause is one of those things prone to misinterpretation by laypeople . . ."

To the extent that's true, it's because laypeople over-complicate the issue. It's a blanket immunity from prosecution and investigation for any speech or debate in either house. Come to cases, it will work for a member who is acting as a whistleblower.

Posted by southpaw | December 10, 2007 9:40 AM

First we had The Competency Dodge. Now we have The Classification Dodge.

Wake me when we get Democrats with a spine.

Posted by Steve Balboni | December 10, 2007 9:41 AM

I would suspect that the congresspeople at the tops of those committees see so much classified materials so often that they are completely conditioned to keep quiet about it all. They probably cannot talk about most of what they see.

Posted by Tyrone Slothrop | December 10, 2007 9:43 AM

"If members of congress aren't supposed to speak up when they become aware of secret crimes and abuses of power, what's the point of them having them in the loop in the first place?"

From the point of view of the criminal, Congressional acquiescence acts as a legitimizing and insulating factor for criminal behavior. From the point of view of the congressional members acquiescing they're lapdogs who aren't supposed to have their own point of view, so the purpose of Rockefeller et al.'s jobs as they see it is precisely to encourage criminals and let them off the hook.

Somehow that doesn't seem like the role the founders or the electorate imagined for Congress.

Posted by R Johnston | December 10, 2007 9:48 AM

Looks like the old dodge. I am going to tell you a secret and then I will have to shoot you so you will not be able to reveal it. Couldnt Rockefeller say this: If it is illegal I will say so in a speech before the Senate. Classification does not cover a crime.

Posted by Alan | December 10, 2007 10:00 AM

But, of course, this entire line of thinking is based on a faulty premise: that Pelosi, Rockefeller, et al actually objected to waterboarding in 2002 but for one reason or another (cowardice, secrecy) felt they couldn't say anything publicly.

All the evidence points another direction: that these people agreed with the practice in 2002. Indeed, the quote from the WaPo article is that the Congresspeople provided "encouragement" for the "enhanced interrogation" (a/k/a torture, right?).

It's only when Pelosi, Rockefeller, et al figured out that waterboarding could be used as a political weapon against the Republicans - say 2004 or 2005 - that they began to object.

Posted by Al | December 10, 2007 10:11 AM

All the evidence points another direction: that these people agreed with the practice in 2002. Indeed, the quote from the WaPo article is that the Congresspeople provided "encouragement" for the "enhanced interrogation" (a/k/a torture, right?).

It's only when Pelosi, Rockefeller, et al figured out that waterboarding could be used as a political weapon against the Republicans - say 2004 or 2005 - that they began to object.

If your point, Al, is that Pelosi, Rockefeller, and co. haven't covered themselves in glory, I agree with you.

If your point is that all right thinking and decent people supported torture until the partisan wars started, you couldn't be more wrong.

It would boggle my mind if Pelosi's acquiescence to torture (a/k/a enhanced interrogation, right?) was her principled position, and the posture of disgust she's striking now is her concession to an irrational political fever.

If, on the other hand, she swallowed her principles in the weeks and months after 9/11 as a consequence of partisan fear and is only now reasserting those principles when events have made it safe for her to do so, that wouldn't surprise me much at all.

Posted by southpaw | December 10, 2007 10:25 AM

"Wake me when we get Democrats with a spine."

Instead of sleeping until the blessed day, you could choose to participate in the selection of the new face of the Democratic Party that is currently underway.

One of the major candidates has as the central focus of his campaign restoring some backbone to the Democratic Party...

Posted by Petey | December 10, 2007 10:32 AM

If your point is that all right thinking and decent people supported torture until the partisan wars started, you couldn't be more wrong.

I wouldn't say "all right thinking and decent people". I would just say it seems to me likely the Pelosi did.

It would boggle my mind if Pelosi's acquiescence to torture (a/k/a enhanced interrogation, right?) was her principled position, and the posture of disgust she's striking now is her concession to an irrational political fever.

I don't know wht you mean by her "principled position". What I'm saying is that it seems to me that Pelosi, Rockefeller, et al were supporters of enhanced interrogation in 2002, not that they objected but were too scared to say anything.

Posted by Al | December 10, 2007 10:34 AM

I would think it more likely to argue that Pelosi & Rockefeller didn't personally approve of torture or think it legal, but that they just didn't care in the slightest.

They weighed factors other than the actual torture itself, which they didn't care about, and only seriously considered torture as a political topic.

And that is not to say that it was a priority, either. There were many other political topics they actually cared about.

Given some ideal environment where they felt they could say 'no' to torture and it be in no way used as an issue against them, they might have. But as far as the principles of the issue or the law, they didn't give the slightest sh*t.

Posted by El Cid | December 10, 2007 10:46 AM

The anti-torture position is, of course, a political loser. And if something happens, god forbid, some spectacular terrorist act - then it's the outright political suicide. The instinct of political self-preservation prevails.

Posted by abb1 | December 10, 2007 11:12 AM

The evidence in favor of El Cid's interpretation is that Bob Graham's apparent reaction to the news that he was personally briefed in 2002 on the CIA's torture was: "huh? what?"

Posted by Al | December 10, 2007 11:14 AM

I would think it more likely to argue that Pelosi & Rockefeller didn't personally approve of torture or think it legal, but that they just didn't care in the slightest.

I remember this whole "debate" starting back in the 90's regarding the Israelis and the Shin Bet. I can't remember anyone making a serious intellectual exercise to excuse torture before that, but it was made in that case and made by people who have a home in the democratic party and are otherwise orthodox liberals.

Posted by Ed Marshall | December 10, 2007 11:17 AM

it seems to me that Pelosi, Rockefeller, et al were supporters of enhanced interrogation in 2002

Well, at least you admit it.

Posted by Jeffrey Davis | December 10, 2007 11:17 AM

When I said "anyone", I meant "anyone in the U.S". Of course, torture has some sort of domestic support anywhere it is practiced locally.

Posted by Ed Marshall | December 10, 2007 11:19 AM

Jim Traficant made big use of the speech and debate clause, before he was convicted and expelled from the House, to make all sots of seemingly-libelous claims. He wasn't prosecuted for those, but I seem to recall that some of his statements on the House floor ended up being used as evidence in his corruption trial. Anyone here remember the details?

Posted by lemuel pitkin | December 10, 2007 11:22 AM

If they say it on the floor, they're protected by the Speech and Debate clause. This is why all copies I've seen of the Pentagon Papers are the "Mike Gravel edition." Sen. Gravel read most of the Papers into the record, and as a result, the edition of the Papers which used his remarks as a source couldn't be challenged on secrecy grounds.

(Not a Mike Gravel partisan, but it is one of the more impressive things a Senator has done in the last 40 years.)

Posted by Lionel | December 10, 2007 11:26 AM

The ideal solution to me seems to be for Congress to change the laws.

Congress can obvisiously give themselves the power to declassify anything they want. Just amend the laws regarding secrey to state something like: "It shall not be a crime to spread infromation that Congress has deemed declassified."

Of course the administartion might show more reluctance to share information in that case but since there is really no point in congressional oversight if they can't spill the beans that would be an aceptable cost. Using the power of the purse I don't think there is any doubt that Congress could compel substantial releases of information anyway.

Posted by Johan Richter | December 10, 2007 11:59 AM

The ideal solution to me seems to be for Congress to change the laws.

Congress can obvisiously give themselves the power to declassify anything they want. Just amend the laws regarding secrey to state something like: "It shall not be a crime to spread infromation that Congress has deemed declassified."

Of course the administartion might show more reluctance to share information in that case but since there is really no point in congressional oversight if they can't spill the beans that would be an aceptable cost. Using the power of the purse I don't think there is any doubt that Congress could compel substantial releases of information anyway.

Posted by Johan Richter | December 10, 2007 11:59 AM
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Everyone I have seen commenting on this topic seems to have had a brain scrub and has totally forgotten that in 2002 when these briefings were given the Democrats were in control of the Senate. The Intelligence Committee could have had hearings on this at the time if the Democrats had wanted.

Also, Congress has hearings on classified topics all the time. They are closed to the public, but if the Democrats had wanted to put heat on the Administration on this subject they easily could have.

Trying to say that Senate Democrats were held hostage by classified briefings is just baloney. They just weren't interested and/or didn't think it was a political winner at the time.

Posted by Campesino | December 10, 2007 12:23 PM

Trying to say that Senate Democrats were held hostage by classified briefings is just baloney. They just weren't interested and/or didn't think it was a political winner at the time.

Posted by Campesino

I didn't forget about Senate control; unfortunately as for the rest, I agree with Campesino.

I'm more frustrated at more recent activities and lapses and abdications of duties, because I will grant that earlier on, there was a general post-9/11 Bush ascendancy lunacy which was nearly impossible to fight politically.

The same cannot be equally said of more recent activities, though. Particularly not since being sworn in as a majority.

Posted by El Cid | December 10, 2007 1:03 PM

did everyone read southpaw's post above citing article 1 section 6? the part that says "..Felony.."? I'm guessing, not being a law professor, that there are felony statutes regarding the use and dissemination of classified information. or is this not enough of a felony (note the capitals in the Constitution) to matter?

Posted by mike c | December 10, 2007 1:59 PM

If members of congress aren't supposed to speak up when they become aware of secret crimes and abuses of power, what's the point of them having them in the loop in the first place?

Answer: to put a veneer of legality and constitutionality on the continuing decline of the republic.

Posted by Junius Brutus | December 10, 2007 2:27 PM

Ah, yes. Junius Brutus is probably remembering the Roman historian Tacitus's description of Augustus's "veiled dictatorship".

How, to avoid being assassinated as occurred to Julius Caesar, Augustus maintained the pretense that the Republic remained. That nothing had changed -- that he, Augustus, merely carried out the directions of the People's elected Senate.

Of course, members of Senate knew their head was on the block if they crossed the dictator.

How did Tacitus put describe the succession of Augustus by Tiberius?
-----------
"Meanwhile at Rome people plunged into slavery- consuls, senators, knights. The higher a man's rank, the more eager his hypocrisy, and
his looks the more carefully studied, so as neither to betray joy at the decease of one emperor nor sorrow at the rise of another, while
he mingled delight and lamentations with his flattery. ...
...For Tiberius would inaugurate
everything with the consuls, as though the ancient constitution remained, and he hesitated about being emperor. Even the proclamation by which he summoned the senators to their chamber, he issued merely with the title of Tribune, which he had received under Augustus. ...

As soon, however, as Augustus was dead, he had given the watchword to the praetorian cohorts, as commander-in-chief. He had the guard under arms, with all the other adjuncts of a court; soldiers attended him to the forum; soldiers went with him to the Senate House. He sent letters to the different armies, as though supreme power was now his, and showed hesitation only when he spoke in the Senate. His chief motive was fear that Germanicus, who had at his disposal so many legions, such vast auxiliary forces of the allies, and such wonderful popularity, might prefer the possession to the expectation of empire. He looked also at public opinion, wishing to have the credit of having been called and elected by the State rather than of having crept into power through the intrigues of a wife and a dotard's adoption. It was subsequently
understood that he assumed a wavering attitude, to test likewise the temper of the nobles. For he would twist a word or a look into a crime
and treasure it up in his memory. ...

...It was then for the first time that the elections were transferred from the Campus Martius to the Senate. For up to that day, though
the most important rested with the emperor's choice, some were settled by the partialities of the tribes. Nor did the people complain of
having the right taken from them, except in mere idle talk, and the Senate, being now released from the necessity of bribery and of degrading
solicitations, gladly upheld the change,"

Posted by Don Williams | December 10, 2007 4:51 PM

This is precisely why Sibel Edmonds went to the US Congress and testified in a secure chamber as to the information she had about "senior elected US officials" being involved in organized crime and treason. She expected the Congressmen to whom she divulged this information to reveal it to the public in open session, and/or request the relevant Committees to investigate it.

None of which happened.

In particular, Henry Waxman explicitly promised her that her case would be the first called before his Committee when the Democrats took control of Congress in 2006.

Now his office won't return her calls.

Tells you all you need to know about the Democrats and where their true loyalties lie.

Posted by Richard Steven Hack | December 10, 2007 7:51 PM

This is more pathetic Presidentialism at work. The executive branch, whose function is to /execute/ the policies decided by Congress, has become the defacto policy making branch of the government, leaving congress an impotent relic of a bygone age.

Posted by Anthony Damiani | December 10, 2007 10:58 PM