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SSCI’s Approach to Releasing its Classified Report Weakens the Senate’s Prerogatives

Section 8(a) of S. Res. 400 provides that SSCI “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.” Chairman Feinstein clearly wants to publicly release SSCI’s report on the CIA detention and interrogation program and she believes that disclosure would be in the public interest. Yet she has not asked SSCI to take a vote under Section 8(a). She has not acknowledged any obligation on SSCI’s part to make a determination under Section 8(a) and she has not explained SSCI’s failure to use its authority under Section 8(b) to release classified information. Indeed, she has acted as if Section 8 does not exist, and no one in the media has bothered to ask her why.

The effect of this approach is to make public release of the SSCI report turn entirely on whether the report is declassified, and therefore cedes decision-making power to the President and the executive branch. Thus, when Feinstein announced in April that SSCI had voted to “declassify” its report on the CIA detention and interrogation program, I pointed out that the committee doesn’t have the authority to “declassify” anything. In reality, all the committee could do was ask the executive branch to conduct a declassification review and hope for favorable results.

Shortly after my post, Professor Lederman was able to get this helpful clarification from SSCI staff:

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.

This deferential approach seems at best inconsistent with the spirit of S. Res. 400, which makes the Senate, not the President, the final decider with regard to SSCI’s public release of classified material. It is particularly hard to understand at a time when Feinstein, among others, is making extraordinary charges about the CIA’s conflict of interest and even obstruction with regard to the report.

Lederman explains SSCI’s actions as reflecting a desire for comity between the branches. SSCI did not wish prematurely “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 case in which they are able to negotiate a compromise.” Instead, he suggests, SSCI “in effect asked the President to offer his views in the first instance as to whether or not there are any parts of the [report executive summary] that should not be disclosed because of possible harm to national security.”

For several reasons I don’t find Lederman’s interpretation fully convincing. First, it is not exactly correct to say that Section 8 was designed only for the “rare case” where the President and SSCI reach an impasse. The drafters of S. Res. 400 expected that only the “rare case” would reach the full Senate for resolution, but Section 8 as written covers all cases in which SSCI decides to release information to the public, regardless of whether the information is classified.

Moreover, the process established by Section 8 seems designed to force the very type of compromise that SSCI supposedly wants. On the legislative side, SSCI must first make the determination that disclosure is in the public interest. The “Executive branch” (presumably referring primarily to the intelligence agencies), meanwhile, has both the responsibility for the initial classification determination and the decision whether to request that SSCI keep the classified information secret. If SSCI and the agency cannot reach agreement, the matter goes to the President, who decides whether to certify that some or all of the disputed disclosure would pose a threat to the U.S. national interest of “such gravity” that it would outweigh any public interest in disclosure. If the President makes this certification, SSCI has to decide whether to accept the President’s decision, attempt further negotiations or elevate the matter to the full Senate. Both sides have incentives to compromise during this process, which presumably explains why no matter has ever gone to the full Senate for decision.

Of course, there is nothing inherently wrong with conducting informal negotiations before Section 8 is formally invoked, and it may well be that the vast majority of potential disclosure issues are resolved in that fashion. But it is rather difficult to understand why such informal negotiations did not take place long before April. After all, SSCI provided the President, the CIA and other executive agencies with copies of the executive summary and full report in December 2012. By letter of December 14, 2012, Chairman Feinstein urged the President “to review or get briefed on the report as soon as possible,” and she made clear that SSCI would be considering public release of the report after it received executive branch comments. Thus, the executive branch had plenty of time to conduct a declassification review and/or to decide what information it should request be kept secret.

Under the circumstances, it would have been hard to accuse SSCI of being trigger-happy had it invoked Section 8 in April. But SSCI did not do so, nor did it merely continue or begin an informal negotiation process. Instead, it took a formal vote to ask the executive branch to conduct a “declassification review,” something that is unnecessary from SSCI’s perspective because Section 8 provides it a mechanism for releasing classified information.

In all likelihood, SSCI (or at least Feinstein) did not really want a declassification review at all. What Feinstein most likely wanted, as Lederman suggests, was for President Obama to signal in advance whether he would object to release of the report.

Ok, but then why go through the charade of a formal vote to “declassify” the report? Why not just tell the White House that a Section 8 vote will be scheduled at some point in the near future and let the President come forward with his position if he wants to?

Perhaps the point of the April vote was to show that there was majority (and bipartisan) support for public release of the report. Perhaps this is why Feinstein announced that SSCI had voted to “declassify” the report, when it actually only voted to send it to the executive branch for declassification.

Whatever the thinking behind the April vote, it did not work. On August 1, SSCI received its report back from the executive branch with “significant redactions.” Feinstein concluded that these redactions “eliminate or obscure key facts that support the report’s findings and conclusions.” On August 5 she announced:

I am sending a letter today to the president laying out a series of changes to the redactions that we believe are necessary prior to public release. The White House and the intelligence community have committed to working through these changes in good faith. This process will take some time, and the report will not be released until I am satisfied that all redactions are appropriate.

Apparently Feinstein is willing to accept an indefinite period of negotiation with the executive branch, but is unwilling to give SSCI leverage in this negotiation by raising the possibility of unilateral disclosure under Section 8. Why this is I have no idea, but I doubt it has much to do with promoting “comity” between SSCI and the intelligence community, which are pretty much in a state of open warfare (see here, here and here).

The effect of SSCI’s approach is to make the President, rather than the Senate, the final “decider” with regard to whether SSCI may disclose classified information. (In the context of the current relations between SSCI and the CIA, it also makes the President look like the adult arbitrating between two squabbling children). This contravenes the text and intent of Section 8 and will undoubtedly be cited in future cases by the executive branch as a precedent for how such disputes are to be handled. After all, if this report, involving what Feinstein herself described as “by far the most important oversight activity ever conducted by this committee,” does not justify invocation of Section 8, what report would?

 

 

2 Comments

  1. Jeff Kaye says:

    You note, “Apparently Feinstein is willing to accept an indefinite period of negotiation with the executive branch, but is unwilling to give SSCI leverage in this negotiation by raising the possibility of unilateral disclosure under Section 8. Why this is I have no idea….”

    You go on to propose possible the reason is to maintain or restore SSCI/intelligence agency “comity.” Perhaps. But I’d say it is possible to give political cover to President Obama. If SSCI went the Section 8 route, Obama would have to go on record — presuming he would back up Brennan and the CIA — and say there were things he didn’t want declassified. This would have a political cost for the President. The current method puts the onus on CIA, and the President in the position of throwing up his hands (ostensibly), while Feinstein can stamp and fume and pretend to be powerless.

    Another thought… The Senate report (though not possibly the Executive Summary) could identify members who were themselves former members of the SSCI staff. The number one figure is George Tenet himself, a former SSCI Staff Director, and Tenet’s Chief of Staff after 9/11, John Moseman, who had served as Minority Staff Director at SSCI. There were a lot more CIA/SSCI revolving door memberships as well. While there appears to be a “war” between SSCI and the CIA, in fact, the truth may be more nuanced.

    • Hi Jeff. Having spent time at HPSCI, I agree that there are often incestuous relationships between the intelligence committees and the IC. Sometimes these relationships also involve bitter rivalries, though, so its hard to know exactly how that will cut.

      As I indicated in my post, I am not buying “comity” as the explanation for why Feinstein has failed to invoke Section 8 (that was Lederman’s suggestion). I really don’t know what the reason is, but some combination of wanting to avoid taking on the personal responsibility and/or wanting to avoid putting the president on the spot seem likely. What really irks me is that no one in the media has ever asked her about Section 8 so we don’t even have an ostensible explanation to consider.

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