If the Washington Administration Had an Office of Legal Counsel . . .

To:  Edmund Randolph, Attorney General of the United States

From:  Paul Colborn (J.D. expected May 1793), Office of Legal Counsel

Date: April 1, 1792

Re: Assertion of executive privilege in response to congressional requests for information

In preparation for tomorrow’s cabinet meeting, you have requested the opinion of this office on a matter of some delicacy. On March 27, the House of Representatives appointed a special committee to conduct an investigation of recent military operations initiated by Major General Arthur St. Clair, the governor of the Northwest Territory. As this represents the first time the House has authorized an investigation of this sort, our response will set an important precedent.

To briefly review the relevant facts, for the past several years the United States has been engaged in both diplomatic negotiations and military conflict with Indian nations in the Northwest Territory. Pursuant to orders from President Washington, in 1790 St. Clair sent General Josiah Harmar to lead a punitive expedition against the more recalcitrant elements of the indigenous population. This effort did not go well. Harmar lost about 200 men in battle and did not achieve his objective.

Last year St. Clair personally led another offensive against the Miami Indians in the Ohio region. The results were even worse. On November 4, 1791, St. Clair’s army was surrounded and completely destroyed by Indian forces. In a letter to the Secretary of War, St. Clair described this “as unfortunate an action as almost any that has been fought.” 3 Annals of Congress 1055. St. Clair is now considering an early retirement.

The House has empowered its committee “to call for such persons, papers and records, as may be necessary to assist their inquiries.” 3 Annals of Congress 493. Pursuant to this authority, the committee has made a broad request to the President for documents that might shed light on the causes of St. Clair’s defeat. We view this as a “fishing expedition” for politically explosive or embarrassing information that might gain the committee members some attention in the press.

The President has asked his cabinet for advice on how to respond to the committee request. Specifically, he wishes to know whether the House has the constitutional authority to seek the information requested and whether he may or should withhold any of the responsive documents.

We accept that the House is an inquest and is entitled to request documents and other information from the executive branch. See generally Mort Rosenberg, Congressional Oversight Manual (1st ed. 1791). However, this principle must be limited by a doctrine we have termed “executive privilege,” which subsumes the privileges set forth below: Continue reading “If the Washington Administration Had an Office of Legal Counsel . . .”

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? Continue reading “Is SSCI Following the Senate Rules?”

Chris Donesa on the SSCI/CIA Dispute

Chris Donesa, former chief counsel to the House Permanent Select Committee on Intelligence, provides this thoughtful and balanced analysis at Lawfare of Senator Feinstein’s charges against the CIA, raising three questions about the dispute.

Of particular interest is Donesa’s third question, which relates to why SSCI itself apparently violated its agreement with the CIA by removing certain documents, including drafts of the “Internal Panetta Review,” from the CIA facility without getting pre-clearance to do so. I agree with Donesa that Feinstein clearly, though implicitly, acknowledged such a violation. She claimed in her statement that the removal of the documents was lawful and in keeping with the “spirit” of the agreement (because the committee redacted the information that it believed the CIA would legitimately be able to protect). The corollary is that SSCI violated the letter of the agreement, and I doubt that the CIA would agree that SSCI complied with the agreement’s spirit either.

I would note here that Feinstein doesn’t say whether she authorized the committee staff to remove the documents. But she is clearly saying that the staff acted properly because “there was a need to preserve and protect the Internal Panetta Review in the committee’s own space.” If they had not done so, she suggests, the CIA might have removed the committee’s ability to access the documents at the CIA facility. Moreover, the CIA might have destroyed the documents altogether.

Donesa finds the last suggestion, in particular, rather implausible under the circumstances, and this would be my first reaction as well. But the most important point is that Senator Feinstein is accusing the CIA of being such a rogue agency that it cannot be trusted to avoid even the reckless and unlawful step of destroying evidence specifically known to and demanded by its oversight committee.

So the question I would raise is whether Feinstein’s charge should be viewed as merely the sort of hyperbole we have come to expect in the back and forth of Washington bickering, or whether it should be taken seriously. And if the latter, what is the proper mechanism for adjudicating such an extraordinary charge?

But Other Than That, the CIA Has Been Very Cooperative With SSCI’s Investigation

Senator Feinstein’s bill of particulars against the CIA, set forth in her speech this morning:

Between 2002 and 2006, the CIA failed to brief the Members of the Senate Select Committee on Intelligence, other than the Chairman and Vice Chairman, regarding its detention and interrogation program.

In 2007 the CIA destroyed videotapes, over the objections of White House Counsel and the DNI, of certain enhanced interrogations.

In early 2009, SSCI staffers provided an initial report indicating that “[t]he interrogations and conditions of confinement at the CIA detention sites were far different and far more harsh than the way the CIA had described them to us.”

After SSCI initiated a full investigation, SSCI agreed, at the request of then- CIA Director Panetta, that it would review CIA documents relevant to its investigation at a secure CIA facility in Northern Virginia. A process was agreed to under which SSCI would be provided with a “stand-alone computer system” that would not be accessed by CIA personnel, other than IT, without SSCI’s permission.

The CIA sent up a laborious and expensive document review process under which every responsive document was reviewed by outside contractors to make sure that SSCI did not receive documents that were either beyond the scope of its requests or potentially subject to a claim of executive privilege.

Beginning in mid-2009, the CIA began producing documents, eventually running into millions of pages, without index or organizational structure, a “document dump.”

SSCI asked the CIA to provide an electronic search tool so it could sort through these documents.  The CIA provided this tool, and SSCI staff used it to identify important documents, which they would then print out or copy to a separate folder on the computer. Eventually the staff identified thousands of such documents in the committee’s secure space at the CIA facility.

In May 2010, SSCI staff noticed that certain documents that had previously been made available for their review were no longer accessible on the SSCI computer at the CIA facility. It later turned out that CIA personnel, without the knowledge or approval of SSCI, had removed 870 documents or pages of documents in February 2010 and another 50 in May 2010. These actions violated the written agreements between SSCI and the CIA and represented the exact sort of CIA interference in the investigation that SSCI had sought to avoid at the outset.

When confronted by SSCI staff, CIA personnel first blamed IT contractors. Then the CIA stated that the removal of the documents was ordered by the White House. This claim was denied by the White House.

The White House Counsel and the CIA gave Senator Feinstein a renewed commitment that there would no further unauthorized access to the committee’s network or removal of CIA documents already provided to the committee. On May 17, 2010, the CIA director of congressional affairs apologized on behalf of the CIA for the removal of the documents.

Sometime during 2010, SSCI staff located draft versions of the “Internal Panetta Review” among the documents made available to the committee at the CIA facility. These documents reached the same conclusions as the committee did with regard to certain “troubling matters” uncovered in its investigation. These documents were identified by SSCI staff as important and were printed out and electronically copied in accordance with their normal practice.

Some, though not all, of the IPR documents were marked as “deliberative” or “privileged.” This was not considered noteworthy because many documents provided to SSCI by the CIA have such markings. Senate Legal Counsel has also advised that these claims of privilege are not recognized by Congress.

Sometime after SSCI staff identified and reviewed the IPR documents, most likely in 2010, the CIA removed access to the vast majority of them. This violated both the CIA’s initial agreements and later assurances by the White House and the CIA that there would be no further removal of documents.

In December 2012, SSCI produced a 6,300 page study of the CIA’s Detention and Interrogation Program and sent it to the CIA for comment.

On July 27, 2013, the CIA provided SSCI with its response. Although the CIA agreed with some parts of the SSCI study, it disagrees with and disputes important parts of it. Importantly, “[s]ome of these important parts that the CIA now disputes in our committee study are clearly acknowledged in the CIA’s own Internal Panetta Review.”

After noting the disparity between the official CIA response and the draft IPR, SSCI staff “securely transported a printed portion of the draft Internal Panetta Review from the committee’s secure room at the CIA-leased facility to the secure committee spaces in the Hart Senate Office Building.” This complied with the spirit (if not the letter) of SSCI’s agreements with the CIA because SSCI redacted from these documents the kind of information (names of CIA non-supervisory personnel and names of specific countries in which CIA detention sites were operated) that the CIA was trying to protect. There is no legal prohibition against what SSCI staff did.

Given the CIA’s past practice of removing or destroying information related to the detention and interrogation program, “there was a need to preserve and protect the Internal Panetta Review in the committee’s own secure spaces.”

In late 2013, Senator Feinstein requested a final and complete version of the IPR be provided to the committee. In early 2014, the CIA refused this request, citing the deliberative nature of the document.

On January 15, 2014, CIA Director Brennan informed Chairman Feinstein and Vice Chairman Chambliss that, without prior notification or approval, the CIA had conducted a search of the SSCI computers at the CIA facility. This search was conducted in response to indications that SSCI staff had already obtained access to the IPR. The CIA did not, either prior to the search or thereafter, ask SSCI how it acquired information regarding the IPR. Despite this, someone has made anonymous allegations in the press “that the committee staff had somehow obtained the document through unauthorized or criminal means, perhaps to include hacking into the CIA’s computer network.”

On January 17, 2014, Senator Feinstein wrote to Director Brennan objecting to any further CIA investigation regarding the activities of SSCI staff due to separation of powers concerns about the search and any further investigation. She followed up with a letter on January 23 asking 12 specific questions about the CIA’s actions. The CIA has refused to answer these questions.

Senator Feinstein believes that the CIA’s search may well have violated basic separation of powers principles, the Speech or Debate Clause and the Fourth Amendment, as well as the Computer Fraud and Abuse Act and Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance. Senator Feinstein has demanded an apology from the CIA and a recognition that the search was inappropriate. She has received neither.

The CIA Inspector General has initiated an investigation of the CIA search and has referred the matter to the Department of Justice for possible criminal investigation.

Senator Feinstein has also learned that the CIA’s acting General Counsel has “filed a crimes report with the Department of Justice concerning the committee’s staff actions.” This apparently took place after the IG made his referral to the Justice Department. Senator Feinstein believes that there is no legitimate reason for the acting General Counsel (who she notes was heavily involved in the activities covered by the committee’s study of the detention and interrogation program) to have taken this action. She “view[s] the acting general counsel’s referral as a potential effort to intimidate this staff.”

She says “this individual is sending a crimes report to the Department of Justice on the actions of congressional staff—the same congressional staff who researched and drafted a report that details how CIA officers—including the acting general counsel himself—provided inaccurate information to the Department of Justice about the program.”

Congressional Release of Classified Information and the Disciplinary Power

In reference to my last post, it has been suggested by one of the more faithful commenters at Balkinization, Shag from Brookline, that the Speech or Debate Clause might bar a house of Congress from taking disciplinary action against a member who unilaterally releases classified information without authorization. Shag asks: “Can action by Congress trump the specific Speech and Debate [sic] clause? Is such Speech and Debate permitted to be questioned in a house of Congress with such action but not in any other Place? Does the First Amendment speech clause enhance or detract from the right (privilege) of a member of Congress under the Speech and Debate [sic] clause?” Shag goes on to ask how the original understanding of and historical practice under the Speech or Debate Clause might be applied in the context of “the fairly recently evolved national security state.”

As legal questions go, the ones Shag asks with regard to the Speech or Debate Clause have very straightforward answers. The text of the Clause is clear that it applies only in “any other Place,” i.e., outside the legislative branch. See, e.g., Howard v. Office of the Chief of Administrative Officer, No. 12-5119 (D.C. Cir. June 28, 2013) (“because the Office of Compliance process occurs within the Legislative Branch, not in a ‘other Place,’ the Speech or Debate Clause does not pose an issue in those cases”) (Kavanaugh, J., dissenting); see also United States v. Brewster, 408 U.S. 501, 517-21 (1972) (discussing the fact that misconduct protected by the Speech or Debate Clause may nonetheless be punished by either house under its disciplinary power). As far as I know, no member has ever asserted the Speech or Debate Clause, either as a defense or as a protection against inquiry, in the course of a congressional disciplinary proceeding. Nor has any scholar, court or anyone else with expertise on the Clause suggested that it could apply in a congressional proceeding. Put simply, a member who faces disciplinary action as the result of disclosing classified information can take no solace in the Speech or Debate Clause.

The question with regard to the First Amendment is slightly more complicated. We recently discussed, in the context of the Rangel case, the question of whether and to what extent constitutional protections apply in congressional disciplinary proceedings. As Outside Counsel’s report indicates, even if such protections apply, they cannot be applied in a rigid manner that ignores the unique nature, purpose and history of congressional disciplinary proceedings. Thus, while one can imagine a plausible First Amendment defense in a congressional disciplinary proceeding (say, for example, if the House or Senate sought to punish members who give interviews to a disfavored press outlet), it is unthinkable that the First Amendment would prevent the House and Senate from enforcing rules that are broadly consistent with traditional limitations on member speech. For example, members cannot claim a First Amendment right to violate rules of decorum and debate, by say interrupting another member who has the floor, using foul language in congressional proceedings, or insulting the President.

Is there a colorable argument that disclosure of classified information by a member deserves First Amendment protection from congressional discipline, perhaps because of the importance of such disclosure in checking “the fairly recently evolved national security state”? Put me in the deeply skeptical camp on that one. Both the House and Senate have had specific prohibitions against unauthorized disclosure of classified information for decades. Punishing members for unauthorized disclosure of secret information goes back even further. On December 31, 1810, it is reported: “The Senator from Massachusetts (Mr. Pickering) was censured for reading from confidential documents in the Senate in open session before the injunction of secrecy had been removed.” Riddick’s Senate Procedure 270 n.1. It is hard to imagine the House and Senate intelligence and ethics committees agreeing that individual members have a constitutional right to violate congressional secrecy rules just because they believe the public interest requires it.

Whatever the merits of such a constitutional argument, however, it will be weaker if a member makes it without first attempting to use the established congressional procedures for releasing classified information. This was my original point, and if Professor Ackerman or anyone else disagrees, they should explain why.

Congressional Release of Classified Information and the Speech or Debate Clause

At Foreign Policy, Professor Bruce Ackerman asks “should members of Congress use their special constitutional powers of free speech to force the facts about the [NSA surveillance program] out into the open?” Ackerman notes that under the Speech or Debate Clause, members of Congress “cannot be prosecuted for reading classified material into the public record– and it is up to them, and them alone, to decide what is worth talking about.” He therefore proposes that individual members of Congress who  oppose the surveillance program, such as Senator Ron Wyden, a member of the Senate Select Committee on Intelligence, disclose such classified information regarding the surveillance program as they believe the public needs to know. Ackerman dramatically concludes “[t]he moment of truth is now.”

Ackerman is certainly correct that the Speech or Debate Clause immunizes members of Congress from prosecution for disclosing classified information on the floor or in committee hearings. See Gravel v. U.S., 408 U.S. 606 (1972). As he also recognizes, however, members are not protected against congressional discipline, up to and including expulsion, for revealing classified information without permission.

What Ackerman overlooks is that both the House and Senate have established procedures for releasing classified information. Wyden, for example, could ask SSCI to disclose information regarding the NSA surveillance program under section 8 of S. Res. 400, which 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.” If SSCI votes for public disclosure, it must then notify and consult with the Senate Majority and Minority Leaders prior to notifying the President of the vote. Once the President has been notified and five days have elapsed, SSCI may release the information to the public unless “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.” In that case, the Senate itself must vote before disclosure may be made.

Ackerman seems to be suggesting that Wyden or other members circumvent this procedure and unilaterally release classified information to the public. This is a bad idea. If the Senate or House allows one member to do this with impunity, nothing would prevent other members from making classified disclosures on the same or other topics. Eventually someone will release information that damages national security and/or provokes a public backlash, thereby giving the executive branch a justification for restricting congressional access to classified information.

Although the congressional procedures for releasing classified information have rarely (if ever) been used, there is nothing preventing Wyden or a like-minded member from seeking to use them now. Certainly such an attempt must be made before there could be any justification for a unilateral disclosure. If there is a moment for unilateral disclosure, in other words, it is not now.

It should be noted, however that SSCI’s draconian interpretation of its secrecy rules might deter Wyden (or others) from publicly disclosing even the fact of an attempt to invoke section 8 of S. Res. 400. This could prevent him from building needed public support for his efforts. Ackerman and others concerned with excessive government secrecy might more profitably focus on that issue rather than advocate for unilateral disclosure that could undermine the entire congressional system for handling classified information.

The Senate’s Legal Basis for Muzzling Former Staffers

According to this story, Vicki Divoll, former counsel to the Senate Select Committee on Intelligence, has been barred by SSCI from discussing in the media (specifically Talking Points Memo) certain non-classified information relating to the committee’s oversight of intelligence programs. Divoll gave an interview to TPM regarding the congressional role in intelligence oversight and submitted it to SSCI for review prior to publication, apparently not expecting that there would be any significant concerns. To her surprise: “[F]or the first time in her career, the committee took the extraordinary step, on a bipartisan basis, of declaring the interview’s entire contents a violation of her non-disclosure agreement and effectively forbade her from putting any of it on the record.”

Divoll and TPM present this as an arbitrary decision by SSCI to block public discussion of intelligence oversight. TPM says that the interview did not involve “classified sources and methods of intelligence gathering” but “general information about how the committee functions– and how it should function.” It says that “[a]mong the insights Divoll shared with us was the important role that staff can and should play in oversight of the executive branch’s intelligence activities.” Moreover, Divoll’s statements “tracked closely with information gleaned from other sources, and the public record.”

No doubt the committee has a different perspective on the matter. Still, given that Divoll left the employ of the committee 10 years ago and has frequently discussed matters related to her tenure at SSCI in the media since then, apparently without objection by the committee, this is a somewhat curious development. It raises the questions of what legal authority the committee has to block a former staffer from discussing matters of public interest, how broad that authority might be, and what arguments Divoll might have to challenge that authority. We will turn to those issues now. Continue reading “The Senate’s Legal Basis for Muzzling Former Staffers”

Laufman on Leaks

Pertinent to my last post, white collar defense attorney (and my former Hill colleague) David Laufman has published this article for the Huffington Post on “Prosecuting Leaks of Classified Information.” It provides an excellent overview of the laws governing national security leaks, and the challenges and risks involved in prosecuting leakers.

Why Doesn’t Congress Investigate National Security Leaks by the Executive Branch?

Stop laughing, I’m serious. If Senator Feinstein and Representative Rogers, the chairs of the Senate and House Intelligence Committees respectively, want to get to the bottom of recent leaks of highly classified information from the executive branch, why don’t they conduct the investigation themselves?

Hear me out. The knee-jerk reaction to such issues is to call for the appointment of a special prosecutor, someone appointed by the Attorney General but given a guarantee of independence to conduct his or her investigation. However, even if the independence of the prosecutor is generally accepted (something that cannot be taken for granted in the highly partisan times in which we live), the criminal process is not necessarily the best mechanism for investigating the leaking of classified information.

For one thing, a prosecutor’s job is to build criminal cases, not to find out how and why leaks have occurred and how to stop them from happening again. For another, there are a lot of difficulties in conducting a successful criminal leak investigation. As recently explained by the Assistant Attorney General for the National Security Division: “One inherent difficulty in leak cases is that the investigations are focused on the pool of individuals who had access to the information, and not those to whom the information was disclosed. This is reflective of the fact that while there are certainly significant national security and law enforcement equities at play in unauthorized disclosure cases, there is also a need to recognize the serious First Amendment interests implicated whenever the media becomes involved in a criminal investigation.” Moreover, when the information in question has been widely disseminated across government agencies, it “can make identifying the source of the leak essentially impossible.”

The congressional intelligence committees have all the tools needed to investigate this matter. They have authority to compel the production of documents, testimony and other evidence in executive session and the systems and procedures to protect the secrecy of the information they gather. They have greater flexibility with regard to obtaining information from the media. Unlike a prosecutor, they don’t have to worry about fixing blame on a particular individual, satisfying all the elements of a criminal violation, or meeting the burden of proof beyond a reasonable doubt. They also do not need to conduct a public trial that might itself jeopardize national security. In addition to assessing responsibility for prior leaks, they can focus on actions to prevent future leaks and to contain the damage that has already been done.

The obvious rejoinder to all of this is that no one would trust Congress to conduct a fair and impartial investigation of such a politically sensitive matter. But while that observation might be compelling in other circumstances, this is a special case. In the first place, the secretive nature of the intelligence committees’ work makes them less susceptible to the occupational hazard of grandstanding. In the second place, Feinstein and Rogers are widely respected, and it would be hard (not impossible, but hard) to characterize any investigation that they jointly conducted as either a witch hunt or a coverup.

And in this case, the comparison is not to a special prosecutor but to prosecutors handpicked by Attorney General Holder. As far as public confidence is concerned, Feinstein and Rogers (or should it be Rogers and Feinstein- it has more of a ring) win hands down.

Of course, if the congressional intelligence committees were to undertake this investigation, they would need an experienced investigator to lead it. Someone who the public would trust. Preferably with some experience in leak investigations. I wonder if anyone like that is available?

 

The Solyndra Subpoenas and the White House Response

The House Energy and Commerce Committee has issued subpoenas to the White House Chief of Staff and the Chief of Staff to the Vice President, seeking documents relating to the Solyndra loan scandal. Specifically, each subpoena asks for “[a]ll documents referring or relating in any way to the $535 million loan guarantee issued to Solyndra, Inc. by the Department of Energy.” This is the only request made by the subpoenas. Although they provide a non-exclusive list of examples that would be responsive to the request, they ask for no other documents.

In this letter, the White House Counsel Kathryn Ruemmler responds that the subpoenas are “unprecedented.” Unprecedented in what sense? Obviously, congressional committees have issued numerous subpoenas to prior administrations, including subpoenas seeking documents and testimony from White House officials. Such subpoenas were rare before Watergate (and virtually unheard of before World War II), but they have become rather commonplace since. Here are some examples of congressional subpoenas issued to the Bush Administration. During the Clinton Administration, House Government Reform Committee Chairman Dan Burton became something of a legend for the number of subpoenas he issued (reportedly over a thousand), including many to the White House.

Perhaps there is something about these particular subpoenas that makes them, in Ruemmler’s view, “unprecedented.” But nowhere in her letter does she explain what that might be.

Instead, her primary objection seems to be that the subpoenas are “overbroad.” She characterizes the document request as “extremely broad” because it “encompasses all communications within the White House from the beginning of this Administration to the present that refer or relate to Solyndra,” and she suggests that “any document that references Solyndra, even in passing, is arguably responsive to the Committee’s request.” She contends that responding to such an “expansive request” would place “an unreasonable burden on the President’s ability to meet his constitutional duties.” As an example, she cites the fact that the subpoenas would require producing “thousands of pages of news clips” literally responsive to the requests.

It is hard to characterize this objection as anything but silly. Asking the White House to produce all documents relating to a single small company is hardly placing an undue burden on the presidency. Federal agencies routinely respond to subpoenas and FOIA requests that are far broader in scope. All that needs to be done is to identify those locations most likely to contain responsive documents and to conduct a reasonable search thereof. Since most if not all of those locations will consist of electronic databases, a single search containing the word “Solyndra” would likely suffice.

Continue reading “The Solyndra Subpoenas and the White House Response”