Secrecy News

Bad Faith at the House Intelligence Committee

The House Intelligence Committee voted yesterday to invoke a provision of committee rules to authorize the release of a classified memo that is said to be critical of the FBI and its role in investigating Russian interference in the 2016 US presidential election.

That provision — Rule X of the Rules of the House of Representatives, section 11(g)(1) — has never been successfully employed before. Strictly speaking, it would not result in “declassification” of classified information, which is an executive branch function, but it would authorize its public disclosure anyway:

Nothing herein shall be construed to prevent the select committee from publicly disclosing classified information in a case in which it determines that national interest in the disclosure of classified information clearly outweighs any infringement on the privacy of a person.

(g)(1) The select committee may disclose publicly any information in its possession after a determination by the select committee that the public interest would be served by such disclosure. 

[…]

(2)(A) In a case in which the select committee votes to disclose publicly any information that has been classified under established security procedures, that has been submitted to it by the executive branch, and that the executive branch requests be kept secret, the select committee shall notify the President of such vote.

(B) The select committee may disclose publicly such information after the expiration of a five-day period following the day on which notice of the vote to disclose is transmitted to the President unless, before the expiration of the five-day period, the President, personally in writing, notifies the select committee that the President objects to the disclosure of such information, provides reasons therefor, and certifies that the threat to the national interest of the United States posed by the disclosure is of such gravity that it outweighs any public interest in the disclosure.

(C) If the President, personally in writing, notifies the select committee of objections to the disclosure of information as provided in subdivision (B), the select committee may, by majority vote, refer the question of the disclosure of such information, with a recommendation thereon, to the House. The select committee may not publicly disclose such information without leave of the House.

Open government advocates have periodically urged Congress to assert itself in this way in order to overcome the classification of important records they believed were improperly withheld. The idea was briefly considered by some intelligence committee members in connection with the “28 pages” that were initially withheld from the report of the congressional joint inquiry into 9/11, and in connection with the Senate Intelligence Committee report on CIA interrogation practices.

But prior to yesterday’s vote, “It does not appear that either house has invoked its procedure for disclosing classified information,” wrote Jennifer K. Elsea of the Congressional Research Service.

So is this a victory for open government? Or is it a cynical manipulation of congressional rules?

One indication that House Intelligence Committee Republicans are acting in bad faith is that they voted in favor of public disclosure of their own memo, but voted against public disclosure of the dissenting memo prepared by Committee Democrats.

“We raised, of course, the transparently political objective behind this, which is to allow the majority to set a certain narrative for a week or so,” said Rep. Adam Schiff(D-CA). But to no avail.

Congressional oversight of intelligence has never been immaculately neutral and above the fray. The Senate Intelligence Committee memorably split along partisan lines in its oversight of CIA interrogation. But when the Democratic majority under Sen. Feinstein released its critical findings, it also released a harsh rebuttal by Committee Republicans. Now, under House Intelligence Committee chairman Rep. Devin Nunes, even that minimal level of bipartisan cooperation has been abandoned.

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