An escape clause Senator Rockefeller should take

by: Carnacki

Thu Dec 13, 2007 at 10:55:10 AM EST

Attempts to find out what Congress actually knew about the 2002 torture of detainees held by the CIA are running right into the brick wall of classification. Only this time, it's not just CIA stonewalling that's keeping the facts concealed. Members of Congress are quick to put the classification muzzle on themselves.

In February 2003, Rep. Jane Harman (D-CA) wrote a letter to the CIA cautioning "against destruction of any videotapes" of al-Qaeda interrogations. It's not clear whether she objected to any actual interrogation techniques in the letter, and she says that because the letter is classified, she was "not free to mention this subject publicly until Director Hayden disclosed it yesterday." Harman is seeking to have the CIA declassify the letter.

Similarly, Jay Rockefeller said he wrote to the CIA in May and September 2005 to seek clarification about interrogation techniques. Unfortunately, those letters are also classified, and neither Harman nor Rockefeller appear inclined to release them.

snip

That may not be the end of the story. Via Matt Yglesias -- longtime ally of snitches and creator of the logo you see above -- comes this Michael Froomkin analysis finding that the Constitution's Speech or Debate Clause gives members of Congress, if they're so inclined, the ability to put classified information into the public sphere with Constitutional protection. It's an esoteric argument and not at all a matter of settled Constitutional law, but it's an option. Apparently then-Sen. Mike Gravel (D-AK) used the clause to enter the Pentagon Papers into the Congressional Record.

Given that classification is used as a political cudgel to cut off debate, perhaps Harman and Rockefeller would be interested in putting the clause to the test by releasing their letters -- minus sources-and-methods -- and daring the administration to prosecute.