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Did Republicans Violate HPSCI Rules? Does it Matter?

           Democrats on the House Permanent Select Committee on Intelligence have alleged that Republican members violated committee rules by speaking with The Hill newspaper following a classified briefing by the CIA on interrogation methods.    Specifically, Representative Kline (R-Minn.) was quoted by the paper as follows: “The hearing did address the enhanced interrogation techniques that have been much in the news lately,” Kline told The Hill. “Based on what I heard and the documents I have seen, I came away with a very clear impression that we did gather information that did disrupt terrorist plots.”  The Democrats are threatening punitive sanctions for this alleged violation. 

            The rule in question is HPSCI Rule 12(a)(1), which states: 

            (1) Generally. Except as otherwise provided by these rules and the Rules of the House of Representatives, Members and Committee Staff shall not at any time, either during that person’s tenure as a Member of the Committee or as Committee Staff, or anytime thereafter, discuss or disclose, or cause to be discussed or disclosed:

(A) The classified substance of the work of the Committee;

(B) Any information received by the Committee in executive session;

(C) Any classified information received by the Committee from any source; or

(D) The substance of any hearing that was closed to the public pursuant to these rules or the Rules of the House. 

            If Kline had disclosed classified information to the press, he would be in violation of subsection (C) of this rule.  Such action would also violate House Rules and, potentially, federal law.  However, there appears to be no allegation that classified information was released.  (It is difficult to see how Kline’s statement, which is essentially the same as claims publicly made by former Vice President Cheney and many others in the past several months, could be said to reveal any classified information). 

            Nonetheless, subsection (B) prohibits not merely the discussion or disclosure of classified information, but of any information received in executive session.  Democrats can argue, therefore, that Kline violated the subsection by discussing the topic of the briefing and by disclosing that the information in the briefing indicated that enhanced interrogation techniques resulted in intelligence that disrupted terrorist plots.  Such a statement, they may contend, constitutes “discussing” and/or “disclosing” the information that was received. 

            Republicans can counter that subsection (B) does not prohibit discussing or disclosing the fact or topic of an executive session briefing, only “information received” in the briefing.  (They can point to the fact that the topic of the briefing was on the HPSCI website).  They can further argue that Kline did not discuss or disclose any information received in the briefing (e.g., by identifying terrorist plots that were disrupted), but merely stated his conclusion based on receiving that information.  They might also contend that the purpose of subsection (B) is to prevent the inadvertent disclosure of classified information, and that Kline’s statement was carefully worded to avoid any possibility of doing so.  Finally, they may argue (see this) that under the broad reading of subsection (B) the Democratic members of HPSCI would also be in violation.  [Update:  In this connection, it should be noted that Speaker Pelosi has made a number of remarks in recent weeks regarding an executive session briefing she received while a Member of HPSCI].

For purposes of thoroughness, we should also consider subsection (D). Although the proceeding in question has been variously described, I suspect that it was a briefing, not a hearing. If so, subsection (D) would not technically be applicable. In any event, I am not sure that asking the question of whether Kline’s statement disclosed the “substance” of the hearing, rather than any “information received” therein, advances the cause of either side. One might argue that the term “substance” is broader, thereby prohibiting even a general characterization of a hearing that does not reveal particular information. One could equally well argue that it is narrower, prohibiting only a disclosure of the essence of the hearing, rather than merely particular bits of information. In short, analyzing the question under subsection (D) does not seem to advance the ball any.

As a lawyer, the temptation is to analyze these competing claims based on the language and purpose and legislative history of the rule, and in light of any relevant precedents interpreting the language. It is doubtful, however, that such an analysis would yield any more definitive answers than suggested by the arguments summarized above, and I would suggest that the legalistic approach really misses the point. The Parliamentarians will tell you that the House and committee rules must be interpreted and applied in the spirit of “comity.” Although this philosophy can be frustrating to lawyers, it makes sense in light of the overriding goal of the rules—to establish settled expectations that allow the members to work together with some degree of mutual confidence. Neither using the rules to punish marginal or technical violations, nor looking for loopholes that enable circumventing the rules, is consistent with this goal.

Seen in this light, it is clear that the door opened by Representative Kline’s statement to the press, whether or not it was technically in compliance with the rules, needs to be firmly closed. In and of itself, the statement probably revealed nothing of significance regarding the executive session proceeding, but its natural effect is to pressure others on the committee to respond with their own public characterizations of the proceeding, which will not only risk the disclosure of sensitive information but call into question HPSCI’s ability to conduct future closed proceedings.

The larger problem, however, is that the political dispute regarding enhanced interrogations, and particularly the argument over what Congress knew and when it knew it, threatens to undermine HPSCI’s critical role in overseeing the intelligence community, and more broadly to harm the functioning and institutional reputation of the House. The only way to solve this problem is for the majority and minority to agree on an approach to resolving the matter. This is what then-HPSCI chairman Pete Hoekstra and Ranking Member Jane Harman did went confronted with the politically sensitive issue of Duke Cunningham’s activities as a member of the committee. They established a framework agreement to govern the rules of the investigation, retained a special counsel (me) to investigate and report, and worked together to ensure that the investigation received the committee’s full cooperation.

With respect to the question of what was disclosed to Congress about enhanced interrogations, this should be a relatively easy task. There were only a limited number of briefings regarding enhanced interrogations, a limited number of participants, and a limited number of relevant documents. A neutral fact-finder should be able to review this evidence and come to conclusion fairly quickly.

It is in the interests of the House for the majority and minority to come together, agree to turn down the temperature on this divisive political issue, and choose a mechanism to resolve the factual dispute. I would suggest that the newly created Office of Congressional Ethics could perform this function. Alternatively, the matter could be referred to the Ethics Committee, to a special counsel, or even to the House Inspector General. One way or another, however, this food fight should end.

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