Should Senator Wyden Reveal Classified Information on the Senate Floor?

I’ve seen some chatter on the internet about the possibility of a member of Congress disclosing classified information. For example, the Hill discusses this Rolling Stone interview in which Senator Ron Wyden said that he considered (and apparently rejected) disclosing classified information about NSA activities on the floor of the Senate.

How would this work? Bruce Ackerman suggests that members of Congress ought to simply read classified information into the public record (“The moment of truth is now”). But Congressional procedure maven Michael Stern argues that this is a little hasty:

Both the House and Senate have established procedures for releasing classified information. Wyden, for example, could ask [the Senate Select Committee on Intelligence] 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.

Maybe Senator Wyden, or other like-minded Senators, should be trying to invoke the SSCI procedures, rather than the more dramatic step of disclosing classified information on the Senate floor.

All of this happens in the shadow of the Constitution’s Speech and Debate Clause — which says that “for any speech or debate in either House, [members of Congress] shall not be questioned in any other place.” For more on the relevance of the Speech and Debate Clause to Congress’s power in interbranch conflicts, I recommend Josh Chafetz, Congress’s Constitution (pp. 742-761).

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