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Should the House and Senate Intelligence Committees Have Heard General Hayden in Public Session?

        

Over at Balkinization, Marty Lederman is upset that the House and Senate intelligence committees conducted closed-door sessions to hear General Hayden’s account of how tapes of CIA interrogations were destroyed.   He asks: 

Even if some of what was on those tapes is classified, and even if occasionally some bits and pieces of the testimony (e.g., the names of the agents; some information gleaned from a detainee) could only be discussed in a classified setting, why wouldn’t the committees insist upon a presumption of public hearings about the who/what/when/where/why of the tape destruction?” 

            I made several comments in response to Professor Lederman (these can be read in their entirety at Balkinization) along the following lines: (1) the House and Senate rules relating to public hearings are simply inapplicable to the Hayden sessions because these were briefings, not hearings; (2) the rules do not require any formal vote to close a briefing and, in fact, the House intelligence committee rules provide that all briefings are to be closed; (3) nothing in the House or Senate rules require committees to gather information by way of hearings rather than briefings or other methods; (4) even if these had been hearings, it is almost certain that the committees would have (properly) decided to close them because it would likely be impossible to have a robust discussion of this subject without getting into classified information; and (5) the responsible way for the committees to proceed is to first get General Hayden’s information in a closed session, as they have done, and then make the decision as to whether there is segregable non-classified information that can be heard in an open hearing or, alternatively, to vote to release any information (classified or non-classified) that they believe is in the public interest to disclose. 

            While acknowledging that the rules I cited allowed at least the House intelligence committee to proceed in the manner that it did, Lederman argues that the committees should have conducted hearings, rather than briefings, in this matter.  He also suggests that if the committees had held hearings, they could not have been closed because the predicate for closing the hearings “likely is not present.” 

            This is simply wrong.  The committees have both the authority and the obligation to close hearings whenever classified information will be discussed.   The House intelligence committee rules, for example, provide that hearings shall be closed if the committee determines that disclosure of matters to be discussed may “endanger national security” or violate “any law” or House rule.  The Senate rules similarly provide for closing hearings to avoid disclosure of matters “necessary to be kept secret in the interests of national defense” or which would violate “provisions of law or Government regulations.”  Discussion of classified matters certainly falls under these provisions (as I think Lederman would concede). 

            Moreover, as I pointed out, the intelligence committees face significant legal and practical constraints with regard to classification matters.  The executive branch makes classification decisions and the committees largely have to rely on the intelligence agencies to tell them what is and is not classified.  So unless General Hayden and the administration agreed that the matters in question could be discussed in open session (which they surely do not), the committees would have little choice but to proceed in closed session. 

            Finally, I noted that there could be an argument that a full committee briefing in the Senate would be considered a “meeting” for purposes of the rules (and thus require a record vote in order to close).  Although I was reasonably sure that it would not be, I checked with a very well informed source in the Senate, who confirmed my instinct that a committee briefing is not a “meeting” for purposes of the Senate rules.  Thus, the Senate intelligence committee was not required to vote to close the Hayden briefing.  

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