What the Pelosi-Briefing Issue Shows - We need a Classified Crimes Act!

[Vyan]

Video of Pelosi Press Conference on Classified Briefings
http://www.youtube.com/v/1635icvGnjo

Pelosi's consistent claim in light of arguments that she was informed about "Enhanced Interrogation" techniques is A) That she wasn't told the techniques were already in use and B) That She couldn't have done Anything about it ANYWAY!

Still I think she should have been able to do something, almost anything, to address Classified Crimes in Progress but unfortunately the current law doesn't allow for it.

It may be difficult for those who haven't had a security clearance to understand, but having access to classified information is often a much of a curse and a burden as it is a benefit.

You may get the information (some of it), but you can't do anything with it.

Under 18 USC 798

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

(3) concerning the communication intelligence activities of the United States or any foreign government; or

(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—

Shall be fined under this title or imprisoned not more than ten years, or both.

Ten years in prison, this is no joke - and it applies to members of Congress just as much as anyone else. If you been granted access to a secure program, you CAN NOT share that information with anyone who doesn't have access to that specific program. Not your spouse, not your kids, not your co-workers and not your congressional staff.

YOU. CAN'T. TELL. ANYONE!

Now the canard has been raised that Pelosi (or Harman whose also been under this microscope) could have or should have objected somehow.

Objected to Who?

The best they could've done is write a sternly worded letter the way the Sen Rockefeller (and Jane Harmon -ht comments) did concerning NSA Wiretaps after he was supposedly "briefed" on the program.

Rockefeller, turning back to the NSA program in his letter, told Cheney: "Without more information and the ability to draw on any independent legal or technical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received."

The letter, whose existence was unknown to Rockefeller's staff, indicated that the three briefers were Cheney, then-CIA Director George J. Tenet and then NSA-Director Michael V. Hayden. The letter said the Senate intelligence committee's chairman, Pat Roberts (R-Kan.), was there, and it indicated, without naming them, the presence of then-Rep. Porter J. Goss (R-Fla.) and Rep. Jane Harman (D-Calif.), the ranking members of the House intelligence committee.

In hindsight, the letter seemed a rejoinder to President Bush's assertions that key congressional leaders were adequately briefed on the expanded NSA program and to his intimation that they did not seriously object. Rockefeller "was frustrated by the characterization that Congress was on board on this," said one official who is close to him and who spoke on background because of the topic's sensitive nature. "Four congressmen, at least one of whom was raising serious concerns, does not constitute being on board."

His letter was simply ignored, so fat lot of good THAT did. Cheney just BLEW HIM OFF, obviously because Cheney knew damn well there was nothing he could do about it. He couldn't call a hearing, he couldn't even tell his staff!

The National Security Act of 1947 requires that the Executive Branch provide congress with regular reports on it's intelligence activities. Yet time and time again we see that these reports are not provided, Congress is often told nothing or only given partial out-of-date information, and if they do get the data they have No Recourse if they happen to receiving alarming information.

We have to change this.

What occurred under the Bush Administration (as it has occurred with other Presidents) is that National Security Classification has been used to COVER UP ACTIVE CRIMES IN PROGRESS.

I'm going to suggest a radical idea here, since the problem seems to be that the law is preventing congress from ensuring the executive branch abides by the law.

Maybe, just maybe - Congress should Change the Law since being an alleged "co-equal" branch of government, making the law is what they're supposed to do. We can see clearly that the current process is broken. Congressional notification is simply being used as a CYA coupled with a Gotcha!

"See, we told you all along, and you didn't say or do anything and therefore you're complicit in the crime"

We all have to come to realize that's simply a load of bull, one that the Bushies were not just shovelling over Torture, but also Domestic Spying and many other programs as well.

However it's not an impossible problem to solve.

Congress needs to Amend the National Security Act to allow a secure channel for Whistle-blowers to access internal Inspector Generals and Ombudsmen when they suspect criminal activity is taking place under classified cover. They shouldn't need to resort to giving up their career and risking violating 798 by contacting the Press as former NSA Analyst Russel Tice did when he began talking to the New York Times about Illegal NSA Wiretaps.

Video of Russel Tice on Countdown
http://www.youtube.com/v/UUSZHC1Gu7U

As Tice describes in this report, the Bush Administration was specifically targeting journalists for data collection - the most likely reason for this is to catch Whistle-blowers like Tice and therefore maintain the Criminal Cover-up. The goal is clear, keeping the cover-up going by creating a Chilling Effect on Government employees, our SOLDIERS, the Press and even Congress itself (ie. Taping Harmon).

In additional to a guaranteed secure channel to internal administration oversight, various Whistle-blowers of Classified Crimes need a secure channel to Congress, and Congress needs the legal power to COMPELL Access to a program in a manner similar to a fully empowered Congressional Subpoena.

If a reluctant administration refuses to grant access to Congress, just as Bush denied Security clearance to the OPR in order to stall and shutdown their investigation into Domestic Surveillance - they need to power to force access - and conduct a secure investigation without allowing any genuine National Security Secret to be generally revealed.

798 should remain strong and prevent premature leaks of such an investigation prior to any potential referral to the DOJ, or calls for an Special Prosecutor.

In special cases, Congress may need the ability to Revoke a Programs Classified Status over the objections of a President by filing suit adjudicating the matter before a court similar to FISA.

Looking back over recent history we can clearly see a number of problems that an unaccountable unitarian executive has brought us. We need more than just disbarment for Yoo, Bybee and Bradbury. We need more than prosecutions for past crimes. We need more than wan assurances from our current executive that "times have changed" -- we need to SERIOUSlY start lobbying Congress to start untying their own hands, and give themselves the power to prevent future abuses by future Administrations.

These suggestions may not all be perfect or sufficient, certainly even the Obama Administration will push back against many of them - but if the abuses of the Nixon Administration brought us the FISA Court, the abuses of Bush should bring us some far far stronger medicine to salve what ailes this nation.


Vyan


Contact Data:

Nancy Pelosi
District Office
450 Golden Gate Ave.
14th Floor
San Francisco, CA 94102
[phone]

Washington, D.C. Office
235 Cannon HOB
Washington, DC 20515
[phone]

http://www.house.gov/pelosi/
Online Contact Form
Email [e-mail]

Rep. John Conyers
* Washington Office: 202-225-5126
* Detroit Office: 313-961-5670
* Trenton / Downriver Office: 734-675-4084
Email [e-mail]

Jay Rockefeller
Martinsburg
217 West King Street
Suite 307
Martinsburg, WV 25401-3211
[phone]
[phone] Fax


Washington, DC
531 Hart Senate Office Building
Washington, DC 20510
[phone]
[phone] Main Fax
[phone] Scheduling Fax
http://rockefeller.senate.gov/
Contact Form

Sen Russ Feingold
Washington, DC
506 Hart Senate Office Building
Washington, DC 20510-4904
[phone]
TDD [phone]
Fax [phone]
Contact Form

U.S. Senator Chris Dodd
448 Russell Building | Washington D.C., 20510
Tel: [phone] | Fax: [phone]

30 Lewis St Suite 101 | Hartford, CT 06103
Tel: [phone] —CT only
Fax: [phone]
Twitter

Update: Ok, I've talked to or left a message with all the above members of Congress, several we're very supportive of the idea particular Feingold's office. Left two messages with Speaker Pelosi. I hope others make a few calls to their own Representatives, particular those sympathetic to this situation - but I can at least say these people have all now heard this idea. Hopefully we can keep the pressure building on this over time.


P.S.: When I previously posted this article on Dailykos the issue was raised that Pelosi and Harmon could have walked out of the briefing room onto the House Floor and said just about anything without fear of legal reprisals under the “Speech and Debate” clause from Article 1.

They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

This theory was tested in 1972 when Senator Mike Gravel (yes, that Mike Gravel) released the Pentagon papers within his subcommittee and published them in the public record. The government sued to bring his staff before a Grand Jury to help reveal the source of the leak (Daniel Ellsberg) and Gravel exerted the clause as a shield. Although the Court found that the shield in theory could apply to not just a House or Senate member but also their staff within the context of Congressional deliberations – they unfortunately didn’t find that Congress members had absolute immunity from committing what would otherwise be considered crimes on the House or Senate floor.
Decision of the Court on Gravel v U.S.

Legislative acts are not all-encompassing. The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but "only when necessary to prevent indirect impairment of such deliberations." United States v. Doe, 455 F.2d at 760.

Here, private publication by Senator Gravel through the cooperation of Beacon Press was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence.

There are additional considerations. Article I, § 6, cl. 1, as we have emphasized, does not purport to confer a general exemption upon Members of Congress from liability or process in criminal cases. Quite the contrary is true. While the Speech or Debate Clause recognizes speech, voting, and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts.

From my reading the court actually ruled largely against Gravel's assertion of S&D, and in particular the clause has specific limitations in relation to "Treason or Felony" - and knowingly revealing classified information which might benefit an enemy nation fits the exact definition of "Treason" and certainly a "Felony" in my book, even if you do it on the floor of congress, and the information divulges the commission of a crime(s). IMO this doesn’t help solve the problem.

[The Magistrate]

1. Regarding The Gravel Decision, Sir

That decision held that persons retailing to the public classified information stated in debate in Congress remained liable to the penalties for disclosing classified information. Thus, any journalist who reported what was said, any media outlet or blogger who made the statements public, in short, anyone who disclosed what was done, would certainly be looking at prosecution and imprisonment.

[Truth2Tell]

2. Congress members COULD HAVE revealed this information

under CURRENT law.

Yes, a Classified Crimes Act would serve useful for a variety of reasons, but to suggest that the lack of such in any way prevented disclosure of torture by Congress members is utterly false.

I understand that our Congress members desperately need to rationalize their political cowardice and complicity on torture and other Bush crimes. So it is no surprise to see this meme that "we couldn't tell anyone" pushed so incessantly on DU.

But here's the facts:

The OP correctly cites 18 USC 798 regarding disclosure of classified information. But what is "classified information?"

"Classified information" http://www.lectlaw.com/def/c170.htm">is legally defined as "Any information or material, regardless of its physical form or characteristics, that is owned by the United States Government, and determined pursuant to Executive Order 12356, April 2, 1982 or prior orders to require protection against unauthorized disclosure, and is so designated."

So lets look at http://epic.org/open_gov/eo_12356.html">Executive Order 12356, the foundational legal document of our current system of security classification. Here's the relevant passage:

Sec. 1.6 Limitations on Classification.

(a) In no case shall information be classified in order to conceal
violations of law, inefficiency, or administrative error; to prevent
embarrassment to a person, organization, or agency; to restrain
competition; or to prevent or delay the release of information that does
not require protection in the interest of national security.

Bottom line: information that has been classified in order to conceal violations of law has been improperly and illegally classified. This is clearly the case regarding torture (not to mention FISA violations and a myriad of other official crimes).

Anyone - from Congress members to members of the press - who publicly reveals improperly classified information has available to them the defense that the information in question was not in fact "legally classified." Of course the revealer of the information is taking the chance that - if prosecuted - a judge will not agree with their personal assessment that the classified activities were criminal.

Sooo... all that would have been required of Pelosi, Rockefeller, Harmon or any other Congress member would have been to make the individual self-evident and perfectly reasonable determination that what they were briefed about violated the law. They could then have revealed that information and fought to oppose the criminal acts.

If the Bush administration were really foolish enough to have opened the can of worms involved in charging a member of Congress with violating 18 USC 798 they would eventually have found themselves in in secret court proceedings defending the legality of the underlying torture crimes. Such an action on their part would have been highly unlikely for both legal and political reasons.

And none of this even touches on the criminal immunity Congress members enjoy for statements made on the floor of the House or Senate.

THEY. COULD. HAVE. SPOKEN. OUT.

They CHOSE not to. Lets just move beyond the tortured rationalizations (pun intended) and admit what we all know: Our Congress members, from both Parties, lacked the moral and political courage to stand against the Bush administration and its crimes. They feared being labeled un-American or soft on terror. They feared the wrath of the media and their political enemies and they feared losing their own positions of power. They behaved like gutless sniveling cowards when we needed them the most.

[soryang]

5. Right

this exception concerning "embarassment" was relied upon in NY Times v. United States to defeat government requested injunction of republication in the Pentagon Papers.

Nevertheless, republication remains a risky activity. You would think that principled Congress persons would not have a problem with publication within the scope. Journalists however are at risk.

[Vyan]

9. I think you're asking quite a bit

first they would have to knowing risk violating 798 on the risk that they'd be able to prove that the classified program was itself illegal - in at least in this particular case .

So the question is, who'se gonna prosecute the case? The DOJ?

Chances are you'd spend the next few years dealing with a grandjury, indictment and the next ten years in prison on the hope and prayer that someone decides you were right in the first place and throws the case out.

There has to be a better way.

Vyan

[Truth2Tell]

14. I think

it would have been a real tough political call even for the Bush Justice Department to bring those kind of charges against the Democratic leaders of the Congress.

I'm not saying the right call morally in this case wouldn't have involved massive personal and political risk. It would have. But that's why we pay these clowns the big money.

[Torn_Scorned_Ignored]

3. Just what we need

more laws to Not enforce.

[Vyan]

10. the laws are already there...

I'm talking about allow a way the work within the black world and allow them to be enforced, which right now - they can't be without someone risking going to prison in the process for doing the right thing.

Vyan

[soryang]

4. Actually publication of Pentagon Papers in Cong Record

...was totally within the Speech and Debate clause privelege and not subject to question:

"Rather, his insistence is that the Speech or Debate Clause, at the very least, protects him from criminal or civil liability and from questioning elsewhere than in the Senate, with respect to the events occurring at the subcommittee hearing at which the Pentagon Papers were introduced into the public record. To us this claim is incontrovertible. The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process. We have no doubt that Senator Gravel may not be made to answer either in terms of questions or in terms of defending himself from prosecution -- for the events that occurred at the subcommittee meeting. Our decision is made easier by the fact that the United States appears to have abandoned whatever position it took to the contrary in the lower court."

Congress does need to make it clear that no one should be prosecuted for republication of matters published in the public Cong
Record.

[MasonJar]

6. We need a law specically exonerating any rep or whistleblower

from prosecution, who informs on a crime, even one involving national security. A system can certainly be devised through the court system to prevent abuse and to protect national secrity. The problem is that the threat of treason is currently implicit in the law and so more specific protection for the whistleblowers must be outlined in new laws. Even now when it is obvious to most of the people that torture and war crimes of monumental proportions were perpetrated under our name by W and his cronies, the Obama administration will not prosecute. So how can we sit here at DU and criticize Pelosi and others in Congress for not exposing what they felt was illegal when definitive proof was not as evident as it is today, while our current administration despite inviolate evidence of war crimes and torture has done nothing? Imagine the deluge that would have flooded Pelosi or Rockefeller et al if they had exposed these alleged national security issues with the Bush crime family in solid control of the government, the media and the evidence (Shredders anyone?). WE NEED SPRCIFIC LEGISLATION which will PREVENT these crimes by protecting anyone exposing them.

[Supersedeas]

7. in light of the current circumstances, it is worthy of serious discussion

[Time for change]

8. Great idea -- I absolutely agree

I think it's ridiculous that our Congress can't divulge information like this. How can they accomplish their oversight responsibilities if they have to remain silent in the face of serious crimes?

But I have a question. In the face of a serious crime being committed by the intelligence agency that briefs a Congressperson about the crime, isn't there some law that could enable an exception -- simply based on the fact that a felony is involved, rather than the excuse Gravel used regarding his releasing the information on the Senate floor? If not, then what happens to the idea that obeying illegal orders is no excuse -- which we used to condemn Nazi war criminals?

[struggle4progress]

11. ... for any Speech or Debate in either House, they shall not be questioned in any other Place ...

[Vyan]

12. Except in case of

Treason or Felony. Doesn't help when sharing classified data is essentially BOTH.

Vyan

[struggle4progress]

13. You're mixing up two separate clauses, and you misrepresent what constitutes treason:

They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same;

and for any Speech or Debate in either House, they shall not be questioned in any other Place.

See the semicolon? The first clause somewhat limits the time and conditions of arrest of Representatives and Senators; the second clause completely prohibits their prosecution "for any Speech or Debate in either House"

The Constitution limits Treason prosecutions also:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort

"Classified" info leaks all the time in DC -- and very seldom does such a leak rise to the level of 'treason"

[ThomWV]

15. The law you cite has no application what so ever to torture or interrogation

I have worked in the area and been immediately subject to the law(s) you mention. Communications intelligence has nothing at all to do with interrogation,

[MasonJar]

16. We need a more specific law which exonerates any rep or whistleblower

who reveals serious crimes, especially those which rise to the level of war crimes and treason, and which also penalizes the same people for not reporting said crimes. (Teachers and doctors live with this rule, why not pols?) Obviously any revelation of wrongdoing and misconduct must be delivered through proper and impartial channels (as, for example, the judiciary or judiciary committees) so that national security is not jeopardized in case of error or even in case of actual commission of a crime which could be dangerous to US security if exposed to the public. Once proper investigation is undertaken and completed, then there must be prosecution of the criminals/traitors. The crime must be clearly lain at the feet of the guilty, not the individuals exposing the crime. If there is error or misinterpretation of facts and the allegedly guilty parties are found innocent, then the law has prevailed and so no one is harmed.

[Better Believe It]

17. I can't defend the cowardly behavior of Pelosi and others who knew and kept silent

All Pelosi and company had to say on torture was: "the Bush government is engaged in torturing people they claim might be terrorists"

We can't legally divulge the details of their torture program without the approval of the Bush administration. The details of their torture program are a big secret. WE have written a letter to President Bush asking for his permission to reveal the hard facts about his secret torture program."

Or something along those lines. You get the picture.

Do you think the Bush government would have dared prosecuted Pelosi and other members of Congress who had released such a statement?

And if Congresswomen Pelosi and company are unwilling to take risks in defense of our nation and Constitution they are at best cowards. They certainly are not reliable patriots and don't deserve our trust and support.