Is SSCI Following the Senate Rules?

According to a press release from Chairman Feinstein yesterday, the Senate Select Committee on Intelligence has “voted to declassify the 480-page executive summary as well as 20 findings and conclusions of the majority’s five-year study of the CIA Detention and Interrogation Program, which involved more than 100 detainees.”

But, wait, SSCI can’t “declassify” anything. Classification and declassification are internal executive branch procedures. Indeed, the press release goes on to say:

The executive summary, findings, and conclusions—which total more than 500 pages—will be sent to the president for declassification review and subsequent public release. President Obama has indicated his support of declassification of these parts of the report and CIA Director Brennan has said this will happen expeditiously. Until the declassification process is complete and that portion of the report is released, it will remain classified.

That makes it sound as if SSCI has merely asked the executive branch to declassify the materials, which is quite different from actually declassifying them.

So what is actually going on here?

Under Section 8(a) of S. Res. 400, SSCI is authorized to vote to “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.” Such a vote triggers a set of procedural steps that may lead to the public release of classified material, whether or not the President consents. But is not the same thing as either declassifying information or asking the executive branch to declassify it.

If SSCI votes to release classified material “any information which has been classified under established security procedures, which has been submitted to it by the Executive branch, and which the Executive branch requests be kept secret,” Section 8(b)(1) requires it (a) notify the Senate Majority and Minority Leaders of the vote and (b) “consult with the Majority Leader and Minority Leader before notifying the President of such vote.”

Once the Majority and Minority Leaders have been consulted, SSCI may proceed with public disclosure unless the President objects:

The Select Committee may disclose publicly such information after the expiration of a 5-day period following the day on which notice of such vote is transmitted to the Majority Leader and the Minority Leader and the President, unless, prior to the expiration of such 5-day period, the President, personally in writing, notifies the committee that he objects to the disclosure of such information, provides his reasons therefore, and certifies that the threat to the national interest of the United States posed by such disclosure is of such gravity that it outweighs any public interest in the disclosure.

Section 8(b)(2). This is a little confusing because it suggests that the Senate leadership and the President are notified on the same day, which doesn’t leave a lot of time for consulting with the former. I would read Section 8(b)(1), however, to refer to actual notification and consultation, while Section 8(b)(2) refers to formal transmission of the vote to the Senate leadership and President.

If the President does object within 5 days, the matter can be referred to the full Senate for resolution. Such referral occur either by the joint action of the Majority and Minority Leaders or by a majority vote of SSCI. The Senate must then go into closed session to debate and decide the matter. It may ultimately decide to disclose some or all of the disputed material, or it may send some or all of the material back to SSCI to make the final decision.

Was SSCI’s action yesterday a vote under Section 8(a) of S. Res. 400? Feinstein’s press release doesn’t say. If it was, it is not clear how the process being followed tracks with S. Res. 400. Has SSCI notified and consulted with the Senate leadership? Has it transmitted or does it intend to transmit formal notice of the vote to the President? Will the President be expected to communicate his objections within 5 days, personally and in writing, as provided by the Senate resolution? How does any of this relate to the “declassification review” that SSCI is asking for?

If I had to guess, SSCI is asking the executive branch to engage in the declassification review in order to determine whether there are any materials “the Executive branch requests be kept secret,” as S. Res. 400 (8)(b)(1) puts it. If that is the case, though, then SSCI may not have begun the Section 8 process at all. If the executive branch does want to keep some (or all) of the material secret, then SSCI may need to have another vote to start the formal notification and objection process from scratch.

On the other hand, if SSCI’s vote yesterday purported to be a decision to release materials under Section 8(a)(1) of S. Res. 400, it is by no means clear that it is complying either with the letter or spirit of the resolution.








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