Halfway between principled and protected: a modest proposal

On Friday, we learned from Rep. Jane Harman (D-CA) that she was told of the CIA’s torture tapes in 2003, and wrote a letter advising that they be preserved:

In early 2003, in my capacity at Ranking Member of the House Intelligence Committee, I received a highly classified briefing on CIA interrogation practices from the agency’s General Counsel. The briefing raised a number of serious concerns and led me to send a letter to the General Counsel. Both the briefing and my letter are classified so I cannot reveal specifics, but I did caution against destruction of any videotapes.

Given the nature of the classification, I was not free to mention this subject publicly until Director Hayden disclosed it yesterday. To my knowledge, the Intelligence Committee was never informed that any videotapes had been destroyed. Surely I was not.

While it sure is swell that Rep. Harman had serious concerns and wrote to the CIA about them, the gravity of what is reported to have been on those tapes probably warranted, as many have noted, more than a secret missive.

Matthew Yglesias, for one, suggested that it was about time those in Harman’s position start snitchin’ and let the chips fall where they may:

What members who find themselves in the position Harman says she's in. . . need to realize is that on some level acquiescence in these kind of abuses winds up legitimizing them. A member who believes he or she is in possession of evidence of crimes being committed and covered-up through illegitmate [sic] classification ought to seriously consider civil disobedience: calling a press conference, stating the facts, and accepting responsibility for the consequences. The White House could, of course, then turn around and seek to prosecute a member for violating classification laws, and the member could argue justification and we'd have it out. That's a tough call to make, clearly. But our political leaders have responsibilities to the country and to the constitution and I've never seen a candidate for office say something like "I'm the one who likes to abdicate responsibility, decline to make the tough calls, and then when someone else gets to the bottom of things try to make sure that my ass was covered."

But Michael Froomkin, with an eye on that old chestnut, the US Constitution, believes that perhaps a lesser degree of civil disobedience would be required:

Thanks to the Speech and Debate Clause there was a way for any Senator or Representative who wanted to blow the whistle to do so in a way that involved no risk of jail or fines – at worst they might have lost their security clearances (and even there the law is a little murky).

. . . .

The Speech and Debate clause has been interpreted to extend beyond floor speeches, e.g. to committee statements, but it unquestionably applies to floor statements. Thus, it would have been possible for Rep. Harman, or Senator Rockefeller, or the others allegedly briefed to go to the floor, either during the times when members may speak on topics of their choice, or under one of the extraordinary mechanism for privileged statements, and denounce the Bush administration’s determinate to torture helpless captives in secret offshore detention facilities.

While Yglesias, Froomkin, and myself, for that matter, understand there could still be political consequences to blowing the cover on administration misdeeds, I, for one, would like to believe that our elected representatives, when confronted with evidence of lies, corruption, or criminal activity, would have the conscience and courage to access one or both of these obstreperous remedies. However, things being as they are, with both individual courage and collective conscience in short supply, let me suggest a third way: closed session.

Closed session, in this case, is the means by which either the House or Senate closes the doors, empties the galleries, and conducts its business in private, without their staff present and without publication in the Congressional Record. Closed sessions are relatively rare (especially in the House), but have been used in the past to brief Congress on sensitive material, or to debate more freely matters that concern classified information or activities. Such sessions can be called by any sitting member, and is to commence upon a second from another member.

While I, as a rule, would be one of the very last to advocate more secrecy from our government, there are instances where a closed session can actually shed more light on an issue—though, admittedly, it requires a little artifice.

I learned about the alternative power of a closed session during my brief time around Capitol Hill during the Reagan Administration. Back then, the White House was using the CIA and various proxies to fund rebel movements and paramilitary militias throughout Central America. Some of this was known and talked about, some of it was an open secret, but to those outside the intel communities and the executive branch, some of it, especially the details of the financial and arms transfers and the level at which all of this was authorized, was not known outside the oversight committees and a few others in the legislative branch (if that).

Many of us knew something was going on, knew that at least some of it was illegal, and knew that pretty much all of it was completely unacceptable for a theoretically freedom-loving democracy. The question was, how to let everyone else know?

The trick here was to get a member with clearance—a member of an oversight committee or the leadership—to ask for a closed session to debate some part of one of these programs. Once in closed session, he or she could use the secrecy provided and the rights granted under the Constitution to discuss in greater detail what unconscionable or undesirable activities were going down.

After that, you wait for human nature or an individual conscience to work its magic.

While the odds that a gang of four or eight will commit an act of civil disobedience or just plain blab to a favorite journalist is perhaps small, the chances increase exponentially when you bring in nearly 100 more senators, or upwards of 400 representatives. You not only get the members of Congress, you get—though technically you shouldn’t—some percentage of their staffs, as well. This not only greatly increases the chance that something you want to get out gets leaked to the press, it makes it much, much harder to find out whom did the leaking.

True, as bleak as the Reagan years were for us liberal Democrats, it seems like a modest Valhalla when compared with today’s Capitol class. A closed session strategy would still require some degree of courage, or, at least, perseverance, on the part of a Harman or a Pelosi, a Rockefeller or a Reid, and it would require a fourth estate with the integrity and interest to pursue the story after the leak. And, true, it is advocating some degree of subterfuge in pursuit of openness. But, given the seemingly larger set of, um, values required of our congressional leaders by the suggested tacks of Yglesias or Froomkin, perhaps this wily tactic is the necessary cover that our leaders can use in place of their nebulous courage.

(cross-posted to Daily Kos)