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Does the Obama Administration Challenge the Senate’s Authority to Release Classified Information under S. Res. 400?

On Friday, August 1, the executive branch returned to SSCI the redacted executive summary of the committee’s study on the CIA detention and interrogation program. Chairman Feinstein announced that there had been “significant redactions” made and that the public release of the report would be held until the committee had time to “understand the basis for these redactions and determine their justification.” Thus, she has chosen not to release the redacted version of the report although SSCI is now legally free to do so (without prejudice to its right to seek release of an unredacted or less redacted version at a later time).

Assuming that Feinstein and her colleagues decide to challenge some or all of the redactions, they have a clear mechanism for doing so in Section 8 of S. Res. 400. As we have discussed before, this provision allows SSCI to vote for public disclosure of classified material the executive branch wishes be kept secret. Unless the President objects within five days, the committee may release the information. If the President does object, the matter may be elevated to the Senate for final decision.

A blog post by Professor Marty Lederman, however, raises the surprising possibility that the Obama administration may not recognize or accept the legitimacy of this mechanism. Lederman cites two FOIA filings by the Obama Justice Department that say SSCI can only publicly release material after declassification review by the executive branch. If these statements were taken literally, they conflict (or arguably conflict) with the Senate’s authority under Section 8.

I think it unlikely, however, that these statements portend any administration challenge to the Senate’s Section 8 authority. First, as far as I know, no prior administration has questioned the Senate’s authority to release classified information under Section 8 (nor the House’s similar authority under Rule X(11)(g)). The provision in question was the subject of some controversy when S. Res. 400 was proposed and adopted in 1976, but it does not appear that the executive branch seriously questioned its constitutionality or legitimacy. This CRS legislative history of S. Res. 400, for example, reflects only that then-DCI George H.W. Bush expressed some reservations about the disclosure provision, feeling that it “might conflict with the statute requiring the DCI to ‘protect intelligence sources and methods.’” (p. 18).

During the floor debate over S. Res. 400, the only constitutional objection to Section 8 was raised by Senator Abourezk, who felt it was too deferential to the executive branch classification system. He argued that the new intelligence oversight committee “will be saddled with formal procedures for declassifying information buttressed by sanctions in contrast to the President who is free to declassify in an ad hoc manner as it suits his political needs.” (CRS-96). No senator, in contrast, questioned the Senate’s constitutional authority to release classified information without executive branch permission.

If the executive branch objected to Section 8, it could have insisted on modification or repeal of this provision (and the analogous House rule, which was adopted in 1977) as a condition of providing SSCI and HPSCI with sensitive intelligence information. Instead, in 1978 President Carter issued Executive Order 12036, which “officially recognized the existence of the two oversight committees and directed that they be kept ‘fully and currently informed’ by the departments and agencies that made up the Intelligence Community.” Britt Snyder, The Agency and the Hill 59. This principle was later enacted into law by the Intelligence Oversight Act of 1980. The executive branch evidently considered the procedures established under Section 8 as an adequate protection for classified information shared with the intelligence committees and undoubtedly preferred them to prior practice in which individual committees could decide to release classified information unilaterally. See id. 200-01 (describing how the Pike Committee in the House unilaterally released classified information that the Ford Administration believed seriously compromised US SIGINT capabilities). Subsequent administrations have continued or strengthened information-sharing practices and laws without challenging (as far as I know) the right of the intelligence committees to use Section 8 or its House counterpart to release classified information.

Furthermore, the two FOIA filings Lederman cites strike me as unlikely vehicles for an Obama administration challenge to Section 8. Both appear in a FOIA case against the CIA in which the ACLU seeks access to the Senate report. The first filing is an affidavit from the director of CIA congressional affairs, who states that “SSCI would be required to submit its Report for a declassification review before it could public release the Report.” The second is a reply brief in which the Justice Department refers to a declassification review of the report as “a necessary precursor to public release.”

Neither of these filings mentions Section 8 of S. Res. 400 or alludes to the possibility of the Senate, as opposed to SSCI, releasing the report. It therefore would seem quite a stretch to suggest that these documents implicitly announce the administration’s rejection of Section 8 as a legitimate mechanism for public disclosure. For all we know, the authors of these documents were not even aware of Section 8. Or perhaps they thought SSCI had committed, formally or informally, to submitting its report for declassification review. Or perhaps they just decided to ignore Section 8 for some other reason.

If the administration really wanted to question the constitutionality of Section 8, one would expect a pronouncement on the issue from the Office of Legal Counsel (not known for being shy about asserting executive prerogatives). I am not aware of any such pronouncement, and Lederman (who served in the OLC as a political appointee in the Obama administration and as an attorney advisor in prior administrations) cites none.

So, in short, I seriously doubt that the administration would challenge the right of SSCI and the Senate to use Section 8. Lederman, with whom I consulted before posting this, assures me that he isn’t predicting this either. Moreover, as indicated in his original post, Lederman doesn’t think there would be much to such a challenge if it were made. Neither do I.

Which begs the question of why SSCI is so skittish about invoking Section 8. A subject I will turn to in a future post.

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