How the Senate Ethics Committee (and Everybody Else) Got Access to the Burris Transcript

           Since Watergate, congressional committees have from time to time sought access to confidential federal law enforcement information protected by either the rules of grand jury secrecy or by statutory limitations on disclosure of intercepted wire or oral communications.  In some cases the committee will apply directly to the court.  For example, during the impeachment proceedings against President Clinton, the House Judiciary Committee wanted to get access to memoranda prepared by the Justice Department in connection with a grand jury investigation of campaign finance violations in the 1996 presidential campaign.  As counsel to the House, I represented the committee in applying to the chief judge of the D.C. District Court for permission to access these memoranda. 

Where law enforcement officials are supportive of the congressional request, however, the normal procedure has been for the Department of Justice to file a motion seeking permission of the court to release the materials to the committee.  This was the process followed by the Senate Select Committee on Ethics, which wrote Attorney General Holder on March 19, informing him that the committee is “conducting a preliminary inquiry into the circumstances surrounding the appointment and seating of Senator Roland W. Burris.”  It requested access to wiretap and other evidence relevant to that inquiry and asked that the Department of Justice seek such court order as might necessary to respond favorably to the request.  The committee also explained that any evidence received would be treated confidentially under the committee’s rules and expressed its willingness to enter into an agreement with the Department regarding non-disclosure. 

The Justice Department subsequently filed a motion as requested, and Judge James Holderman, chief judge of the US District Court for the Northern District of Illinois, issued an order on May 26 granting the motion.  The legal issue before the court was whether the committee qualified as an “investigative or law enforcement officer” entitled to receive wiretap evidence under 18 U.S.C. § 2517(1). 

An “investigative or law enforcement officer” is defined as “any officer of the United States . . . who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses.”  18 U.S.C. § 2510(7).  This definition raises three issues with respect to the Senate Ethics Committee. 

First, although not considered by Judge Holderman, is the issue of whether the committee consists of “officers of the United States.”  Depending on the context, laws using this or similar terms have sometimes been interpreted as including Members of Congress, and sometimes not.  See generally Operation Rescue Nat’l v. United States, 147 F.3d 68 (1st Cir. 1998).  The term itself is therefore ambiguous as applied to Members. 

The second issue is whether the committee is empowered “by law” to conduct investigations (it is clear that it is not empowered to make arrests).  Here the court found  the constitutional authority of disciplining Members, which is granted to each House under article I, § 5, cl. 2, implies an investigative authority, and this, combined with the delegation of this investigative authority to the committee pursuant to Senate Resolution 338, satisfies this requirement.  One might quibble with this conclusion on the grounds that the committee’s authority has been authorized by “resolution,” rather than by “law,”  but the court’s conclusion seems to me to be better view.  After all, the Constitution is the supreme law of the land and even congressional rules have been considered to have the force of law. 

The final, and most difficult, issue is whether the committee is authorized to investigate violations of federal criminal law.  The court rested its affirmative conclusion on Senate Resolution 388, which provides in pertinent part  that the committee is to “receive complaints and investigate allegations of improper conduct which may reflect upon the Senate, violations of law, violations of the Senate Code of Official Conduct and violations of rules and regulations of the Senate, relating to the conduct of individuals in the performance of their duties as Members of the Senate, or as officers or employees of the Senate, and to make appropriate findings of fact and conclusions with respect thereto.”  The court concluded that “because the members of the Senate Ethics Committee are authorized by law to conduct investigations into misconduct that may reflect upon the Senate, including allegations of misconduct by a United States Senator that may violate the criminal laws of the United States, the members of the Senate Ethics Committee are investigative officers as defined by section 2510(7) and thus are qualified to receive disclosures under section 2517(1) for use in the performance of their official duties.” 

The problem with the court’s reasoning is that while the Senate Ethics Committee is clearly authorized to investigate whether a Senator (or Senate officer or employee) has committed a violation of law in the performance of official duties, this is rather different from an authority to investigate violations of law per se.  One could argue that the statutory definition in 2510(7) is meant to include only those who have a role in investigating offenses for the purpose of enforcing the law, while the committee’s authority is to investigate persons, not offenses, for purposes of determining whether their conduct merits discipline.  The fact that this conduct may or may not have violated a criminal statute, while relevant to the committee’s conclusion, is not determinative.   

Nonetheless, I think that the court reached the correct result here.  Because each House of Congress has broad powers to investigate and obtain information for purposes of carrying out its constitutional functions, courts should be extremely reluctant to read a statute as applying in such a way as to limit the congressional investigatory authority.  It is this overriding constitutional consideration, rather than the statutory language, which is most supportive of Judge Holderman’s ruling. 

This explains how the Senate Ethics Committee got access to the Burris transcript.  Less explicable is how that transcript got released to the general public.  The reason is that the Justice Department, in its sealed motion to Judge Holderman, attached a copy of the transcript.  When the judge decided to unseal the motion (which seems appropriate in the absence of any objection from lawyers for Senator Burris or former Governor Blagojevich), the transcript was unsealed as well. 

It seems to me that this has to have been an error.  The whole reason for the motion was that the law severely restricts the dissemination of evidence collected by wiretaps.  The Senate Ethics Committee was entitled to access only because it was found to be within the statutory exception for “law enforcement and investigative officers.”  The fortuity that the Justice Department attached the transcript to its motion certainly should not transform that exception into one for the entire world.

A Response to “Congress’s Torture Bubble”

          Vicki Divoll, former counsel to the CIA’s Counterterrorist Center and the Senate Select Committee on Intelligence, wrote an op-ed for the New York Times this week entitled “Congress’s Torture Bubble,” in which she discusses limitations on the interrogation briefings provided to Congress from September 2002 onward.  Although Divoll covers many of the legal issues addressed in my post earlier in the week, she presents the information in a way that is likely to confuse and mislead her readers. 

             Divoll’s main thesis seems to be that even if the “Gang of Four” (the Chairs and Ranking Members of the congressional intelligence committees) had objected to the interrogation program, “as a practical matter, there was very little, if anything, [they] could have done to affect the Bush administration’s decision on the enhanced interrogation techniques program.”  Her support for this thesis includes statements of the blindingly obvious (individual Members of Congress do not have the power to enact laws on their own) and descriptions of political reality (it was highly unlikely that there would have been political support in Congress for enacting legislation to stop the program).  But the thesis is predicated on the unstated, and unsupported, assumption that the only way Members of Congress could have ended, or even affected, the interrogation program was by passing a new law.  This is debatable, given the fact that the Bush administration ultimately ended the program without any new legislation requiring it to do so. 

            More important, however, is that Divoll’s thesis has nothing to do with her area of presumed expertise, namely the laws and regulations governing intelligence briefings to Congress.  The assumption of congressional impotence also camouflages the fact that she fails to adequately address the most important legal issue, i.e., the limits of what the “Gang of Four” were permitted to do with the information they received. 

             Divoll states that “[i]t is unlawful for the executive branch to limit notification, as it did here, to the Gang of Four.”  This assertion is based on 50 U.S.C. § 413b (c) (2), which, as noted in my earlier post, provides:If the President determines that it is essential to limit access to [a covert action] finding to meet extraordinary circumstances affecting vital interests of the United States, the finding may be reported to the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other member or members of the congressional leadership as may be included by the President.”   

            The permissive phrasing of this provision makes it difficult to say with certainty whether the President is required, as Divoll contends, to report covert actions to (at least) the “Gang of Eight,” rather than the Gang of Four.  Divoll’s reading of the provision seems reasonable.  However, the provision only applies to notifications about covert actions and, as Divoll acknowledges, the interrogation briefings may not have involved covert actions at all. 

            One should note here the peculiarity that Divoll herself is unsure whether the interrogation briefings were conducted pursuant to the statutory provision.  At the time of the first briefings, Divoll was counsel to SSCI.  One would think that, at a minimum, she would have insisted that the executive branch (a) identify the authority under which it was conducting any restricted briefings, and, (b) if proceeding under the statutory provision, brief the full Gang of Eight.  To the extent there is uncertainty about the authority underlying the briefings, Divoll is as much to blame as anyone. 

            In any event, as I argued in my prior post, it is most likely that the interrogation briefings were not conducted pursuant to the statutory provision, but pursuant to an informal practice that has developed over many years, in which the executive branch briefs only the Gang of Four about sensitive intelligence matters that do not involve covert actions.  Divoll acknowledges the practice, and the fact that it began before the Bush administration, but still asserts that “every member of the two committees should have been notified” about the interrogation programs. 

            But what does she mean by this?  Does she mean that the practice of restricted briefings is bad policy or actually illegal?  Did she object to this practice either when she advised the briefers (CTC) or the briefees (SSCI), and, if so, on what basis?  If the executive branch has been violating the law when it provided restricted briefings, haven’t the congressional intelligence committees been violating the law when they accepted them?   Divoll answers none of these questions. 

            A better view of the law, it seems to me, is that while the executive branch and congressional intelligence committees are free to agree to restricted briefings, there is no legal prohibition against the Chair and the Ranking Member sharing the information with other members of the committee.  Furthermore, as argued in my prior post, the rules of the House and the House Intelligence Committee at least allow, and under some circumstances may compel, such information sharing. 

            Divoll acknowledges that the Gang of Four could have shared the interrogation briefings with other members of the committees.  However, she presents this in passing, as if it is of no moment, and fails to explain why the Gang of Four would not have taken this step if they had objected to the interrogation program.  Instead, she leaves the impression that such action would be as radical as disclosing the information in open session on the floor, although the latter would be clear violation of congressional rules.  And while Divoll is correct that the Speech or Debate Clause would protect the Gang of Four from civil or criminal liability for things said on the floor of the House or Senate (or in committee), it would not protect them from punishment by Congress. 

            In short, Divoll’s op-ed, while it might mislead readers to believe that the Gang of Four had no viable options for responding to the interrogation briefings, does not in fact make such a case.  As discussed in my prior post, viable options did exist.  Whether these would have been successful in changing the interrogation program is, of course, a matter of speculation.  But the same could be said whenever a Member of Congress sets out to stop or change an executive branch policy.

Restricted Intelligence Briefings and the Intelligence Authorization Act of 2009

          My attention has been called to Section 502 of the Intelligence Authorization Act of 2009 (H.R. 5959), which passed the House last year (but never became law).  This provision would have amended the National Security Act of 1947 to provide a procedure governing situations where the President decides to disclose certain highly sensitive intelligence information only to the Chair and Ranking Member of the congressional intelligence committees. 

            Under this provision, intelligence information (other than information on covert action, which, as noted in my last post, is already covered by statute) would have to be shared with all members of the intelligence committees “unless the President requests that access to the information or material be limited after determining that limiting such access is essential to meet extraordinary circumstances affecting vital interests of the United States.”  The request and the extraordinary circumstances justifying it would have to be detailed in writing to the Chair and Ranking Member.  

            Even when such a request was made, it would not be automatically binding on the committees.  Instead, it would be up to the Chair and Ranking Member of each committee to “jointly determine whether and how to limit access to the information or material.”  If they were unable to agree, however, the default position would be to limit access in accordance with the President’s request.  Finally, “any information or material to which access is limited shall subsequently be made available to each member of the congressional intelligence committees at the earliest possible time and shall include a detailed statement of the reasons for not providing prior access.”    

            Of course, the fact of an unenacted statutory amendment does not prove what the current state of the law is, but it tends to confirm my view that Congress has not given and would not give the executive branch ultimate control over what Members can do with intelligence information that has been shared with them.  Instead, the final decision must rest with each House of Congress, acting pursuant to its own rulemaking powers.  Indeed, even if the statutory provision were passed, it would still be within the constitutional power of each House to change its own procedure by resolution of the body.  

            My understanding is that Section 502 had bipartisan support.  Perhaps there will be another effort to enact this worthwhile clarification of the law. 

What the Presence of Congressional Staff Tells Us About the Interrogation Briefings

            Documents released by the CIA in the past few days indicate that congressional staff attended the key briefings given Congress with regard to “enhanced interrogation techniques” used on terrorist detainees.  In particular, a September 4, 2002 briefing to Porter Goss and Nancy Pelosi, then the Chairman and Ranking Member of the House Permanent Select Committee on Intelligence, was attended by Tim Sample and Michael Sheehy, and a February 5, 2003 briefing to Goss and Jane Harman (who had then replaced Pelosi as HPSCI Ranking Member), was attended by Patrick Murray, “Louise” Healey (referring, I assume, to Christine Healey, whose real first name is apparently classified), and Sheehy. 

            This is interesting for several reasons.  First, the fact that congressional staff participated in the briefings may tell us something about the legal authority under which the briefings were conducted.  There is only one legal provision which explicitly authorizes intelligence briefings limited to the Chairman and Ranking Member of the House and Senate Intelligence Committees.  This provision, which governs covert action findings, states: “If the President determines that it is essential to limit access to the finding to meet extraordinary circumstances affecting vital interests of the United States, the finding may be reported to the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other member or members of the congressional leadership as may be included by the President.”  50 U.S.C. § 413b (c) (2). 

            If the Bush Administration had been relying on this provision, it seems unlikely that it would have permitted staff to attend the briefings.  After all, the statute specifically identifies the persons to whom the President may choose to report the finding, and all of them are members of the House and Senate.  It would seem difficult for the administration to have justified excluding congressional leadership, which is specifically mentioned in the statute, while at the same time including HPSCI staff, which is not.

            It seems more likely, therefore, that the briefings were conducted pursuant to an informal practice that has developed over a number of years.  This practice was described by L. Britt Snider in a 1997 article entitled “Sharing Secrets with Lawmakers:  Congress as a User of Intelligence:  Occasionally, even in the intelligence committees, an analytical judgment or conclusion will be based on very sensitive information that analysts feel uncomfortable imparting to a large audience. Agencies typically deal with such situations by briefing the chairman and the ranking minority member separately, or perhaps the majority and minority staff directors acting in their stead. When the full committee is subsequently briefed, the analyst usually states that certain extremely sensitive information has been conveyed separately to the chairman and the ranking minority member.”

            Since that time, it appears that the practice of limiting briefings to the Chairman and Ranking Member (or their staff representatives) has become broader and more routine.  According to a January 2009 CRS Report, the executive branch now generally limits briefings on “operational intelligence” in this fashion, despite the absence of any statutory authority to do so.

            The fact that the executive branch without statutory authority limits who may attend briefings, however, cannot in itself impose any restriction on what may be done with the information received in those briefings.  (This also may be true, but less obviously so, for limited briefings authorized by statute).  I presume that the executive branch would claim there is at least an informal understanding that the information provided in limited briefings will not be shared with other members of the intelligence committees; perhaps there are even written protocols to that effect.  But while such agreements might be “enforced” by the executive branch cutting off future briefings, they would not seem to be legally binding or enforceable in any sense.

            Furthermore, it might be difficult to square any such non-disclosure agreement with the rules that govern HPSCI.  Nothing in either the House or committee rules explicitly authorizes, much less requires, the Chairman or Ranking Member to keep information secret from other members of HPSCI.  On the contrary, HPSCI Rule 14(b) provides that “[a]ll Members of the Committee shall at all times have access to all classified papers and other material received by the Committee from any source.”    In addition, House Rule X (11) (g) authorizes HPSCI to “disclose publicly any information in its possession after a determination by the select committee that the public interest would be served by such disclosure.”  If the Chairman and Ranking Member could not disclose information to other members, there would be no way for the committee to make this determination.

            It seems likely, therefore, that Goss, Pelosi and Harman were legally entitled (a) to disclose information received in the restricted EIT briefings to other members of HPSCI and/or (b) to introduce a HPSCI resolution authorizing the disclosure of the information to other members for purposes of making a finding under House Rule X (11) (g).  Of course, they might not have been aware of their legal rights in this regard if they had been dependent solely on the executive branch for advice and assistance.  But because they had staff to advise them, they had the opportunity to learn their rights if they were so inclined.

Hill Report on the Renzi Case

           The Hill reports that the judge (presumably referring to Magistrate Velasco) in the Renzi case has scheduled a special hearing to determine whether prosecutors improperly listened to privileged attorney-client communications captured during the wiretap of Renzi’s cell phone.  As the article notes, this is a separate matter from the Speech or Debate issues regarding the wiretap. 

            This matter does not seem to involve any legal or factual issues peculiar to congressional defendants and so it is not one that I have been particularly following.  It is worth noting, however, that The Hill article suggests that this incident, combined with the prosecutorial misconduct in the Stevens case, may reflect a pattern of abuse in the Justice Department’s investigations of Members of Congress.  A bit of a stretch, IMHO, but there you have it.