By Brian P. McGlinchey
As an intelligence community declassification review of 28 pages on foreign government links to the 9/11 hijackers enters its third year, the former senator who put the Pentagon Papers into the public record under the protection of the Constitution’s Speech or Debate Clause is urging members of Congress to use the same tactic to finally reveal what’s in the 28 pages.
Mike Gravel, who represented Alaska in the Senate from 1969 to 1981, has shared the idea with Senator Ron Wyden and staffers for Senators Rand Paul and Kirsten Gillibrand. (Last year, Paul and Wyden introduced Senate Bill 1471, which would direct the president to release the pages; Gillibrand is the bill’s only other cosponsor.)
A Powerful Option Seldom Used
Found in Article 1, Section 6 of the U.S. Constitution, the Speech or Debate Clause shields senators and representatives from criminal prosecution for their remarks during official congressional business:
“Senators and Representatives…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 from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”
In 1971, Gravel used the clause to single-handedly declassify 4,100 pages from the Pentagon Papers, a classified history of the Vietnam War. After securing a leaked copy of the report, he convened a meeting of a Senate subcommittee he chaired, read from them for an hour and then entered all of them into the congressional record.
In Gravel v. United States, the Supreme Court ruled that the Speech or Debate Clause protected both Gravel and his aide who assisted him from prosecution for the disclosure.
“What the Pentagon Papers proved in my case, which was the landmark of it, was that any member of Congress could release anything—secret, top secret, confidential—anything that they felt was in the best interest of the people to know. Period. That’s a judgment they have the power to make under the constitution,” said Gravel.
Though Gravel blazed a broad declassification trail 45 years ago, it hasn’t been used since. Now, he’d like to see the path used to bypass the executive branch’s classification of the 28 pages.
“We are three separate divisions. That’s the strength of our country. You have the executive, the legislative and the judiciary. The legislative has no obligation to honor the classification of the executive. That’s what the Speech or Debate Clause is all about,” said Gravel.
Easier Said Than Done?
“I think it’s a hypothetical scenario and not a very likely one,” said Steven Aftergood, who directs the Federation of American Scientists’ Project on Government Secrecy. “There’s a reason we call it a Pentagon Papers scenario—because it really hasn’t happened deliberately since then.”
The first hurdle to a Gravel-style release of the pages is a physical one: The pages are kept in a secure facility beneath the U.S. Capitol. Members of Congress can only read them with the permission of their intelligence committee, and then do so under close observation, after first shedding their pens, papers and cell phones.
“The problem is that no one can take notes, so how are you going to get the 28 pages—are you going to put them in your pocket and walk out? I doubt it,” said Rep. Walter Jones, who introduced House Resolution 14, which urges the president to release the pages.
As an alternative to a cloak-and-dagger acquisition of the pages, a legislator could summarize them in a speech.
The idea of recapping 28 pages of text that are filled with dates, dollar amounts, account numbers and a variety of Arabic names struck Jones as daunting. “It would take someone with a better memory than mine,” he said with a soft chuckle.
Last month, the September 11th Advocates, a group of activist 9/11 widows, suggested an ambitious way of overcoming the limits of human memory: They challenged each member of Congress to read the 28 pages, memorize a few sentences each and then individually read them into the record in a mass act of rebellion against undue executive branch secrecy.
As much as we are determined to read every word of the 28 pages, however, it would seem that a single conscientious member of Congress could do a great deal for the cause of transparency without the need for heavy-duty memorization.
Judging from the remarks of those who’ve read them, the 28 pages contain specific “headline” revelations that could be summarized without quoting minute details like account numbers or dollar amounts—all that’s needed is an elaboration on these comments already made in public:
- 9/11 Commission member John Lehman, when asked if the 28 pages name names: “Yes. The average intelligent watcher of 60 Minutes would recognize them instantly.”
- Former Sen. Bob Graham: “The 28 pages point a very strong finger at Saudi Arabia as being the principal financier” of 9/11.
- Rep. Rick Nolan: “The information presents a clear and startling picture of who financed the attacks.”
While the Speech or Debate Clause shields members from prosecution, they may face other consequences.
“It would protect them from legal liability. It would not protect them from internal sanctions by their own colleagues. They wouldn’t be arrested, but they might be censured,” said Aftergood.
Gravel thinks otherwise: He has been circulating a detailed analysis written by attorney Mick Harrison that concludes— given the specific facts surrounding the 28 pages—that censure wouldn’t be a possibility.
A different consequence does seem likely: “They would lose access to classified information in the future,” predicted Aftergood.
Though Gravel said he was able to view classified information after he exposed the Pentagon Papers, the more recent experience of Florida Congressman Alan Grayson lends credibility to Aftergood’s prediction.
Grayson made a speech from the House floor in which he cited Edward Snowden’s revelations about NSA mass surveillance. Despite the fact that these revelations had been already published in a newspaper, Grayson says the intelligence committee chair at the time, Mike Rogers, characterized his action as a disclosure of classified information, and the House intelligence committee then denied Grayson’s request to read the 28 pages.
For Gravel, however, there’s too much at stake for the pages not to be released: “Members of Congress, under the Constitution, have a right and—believe me—an obligation, because if you don’t inform the people, they have no role in influencing government policy because they’re left in ignorance.”