“Pentagon Papers” Senator Urges Use of Speech or Debate Clause to Disclose Secrets of 28 Pages

By Brian P. McGlinchey

Former Sen. Mike Gravel
Former Sen. Mike Gravel

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.

One of the 28 Pages

“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.”

Congressional Consequences

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.

Senator Mike Gravel
Senator Mike Gravel

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.”

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Grayson to Submit New Request to Read 28 Secret Pages on 9/11

Congressman Alan Grayson
Congressman Alan Grayson

Congressman Alan Grayson, one of three representatives who last week joined the growing movement to declassify a 28-page finding on foreign government support of the September 11th hijackers, told 28Pages.org he did so because “the American people have the right to know what happened on 9/11 in every regard.”

As he takes a stand for releasing the 28 pages to the public, he remains determined to read the 28 pages himself. Denied permission by the House intelligence committee in the waning weeks of the last Congress, Grayson will try again in the new one.

The Florida congressman said the December 1 refusal of his first request was “politics, pure and simple.”

“There are people on the intelligence committee who are unhappy with the fact that I have been a staunch opponent of pervasive domestic spying here in the United States,” said Grayson. “The vote was almost entirely on party lines because the Republican chairman (Mike Rogers) misrepresented information to the committee about my actions.”

Rep. Grayson on the House Floor, June XX 2013
Grayson Speaking on the House Floor, June 2013

In June 2013, amid the first wave of Edward Snowden’s revelations of NSA mass domestic surveillance, Grayson delivered a speech on the House floor that was accompanied by a display of NSA briefing slides that had already been published in The Guardian and The Washington Post. Grayson said the information he shared in the speech relied “solely on information in The Guardian…and that was misrepresented to the (intelligence) committee members as my misusing classified information.”

“Frankly, if they’re going to be playing those kinds of games, it’s a wonder that good people ever get to find out anything about the octopus tentacles of the spying-industrial complex,” said Grayson.

Grayson is hoping for a different outcome when he submits a new request to read the 28 pages.

“Chairman Rogers is no longer chairman of the committee—in fact he’s no longer on the committee or even in Congress—and I hope the current chair will not try to twist the facts the way that Rogers did and I’ll be able to see the information that not only I should be able to see but also every member of the public,” said Grayson.

Grayson cast doubt on the notion that releasing the redacted information could pose a risk to national security or intelligence operations.

“It’s inconceivable to me at this point, more than 13 years later, that there’s any actionable information the administration needs to keep secret in order to be able to do anything with it,” said Grayson, who represents Florida’s 9th congressional district. “No one has ever claimed there’s anything in those 28 pages that needs to remain classified in order to protect current U.S. interests,” he added.

Grayson’s criticism of the continued secrecy of the 28 pages is echoed by many who have read them, including former Senator Bob Graham—who co-chaired the joint congressional inquiry that produced the 28-page chapter in an 838-page report—and Congressmen Walter Jones, Stephen Lynch and Thomas Massie.

While Grayson is well-known as an outspoken Democrat, support for the declassification of the 28 pages on Capitol Hill comprises a near-perfect 50/50 mix of Republicans and Democrats united by a common belief that foreign government links to the 9/11 terrorists shouldn’t stay secret.

REDACTED w911Pressure your legislators to read the 28 pages and support their release. Call or write today.

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Great Start to New Session: Three House Reps Join H.Res.14

JOHN CONYERS GRAYSON 2 MARK POCANFrom left: John Conyers (MI), Alan Grayson (FL), Mark Pocan (WI)

The 114th Congress is still in its infancy, but three representatives have already joined Walter Jones, Stephen Lynch and Thomas Massie to cosponsor House Resolution 14, which urges the president to declassify the 28-page finding on foreign government ties to the 9/11 hijackers. The three are John Conyers (MI-13), Alan Grayson (FL-9) and Mark Pocan (WI-2).

H.Res.14 is the successor to H.Res.428, which had accumulated 21 cosponsors by the end of the 113th Congress, with more than half of that number joining the drive for 9/11 transparency in the final four months of 2014 alone.

Grayson made headlines in December when he announced the House Intelligence Committee had denied his request to read the 28 pages, telling FloridaBulldog.org that retiring committee chair Mike Rogers misled the committee in an act of retribution for Grayson’s outspoken criticism of mass surveillance programs.

More Cosponsors to Come

Representatives who cosponsored H.Res.428 aren’t automatically transferred to H.Res.14; staffers in Congressman Walter Jones’ office are coordinating the process of getting them aboard the new resolution and tell 28Pages.org they expect all of them to make the move.

For the moment, H.Res.14 has five cosponsors. Assuming the addition of all of the remaining* H.Res.428 cosponsors, the tally will soon rise to 18.

REDACTED w911Please take just a few minutes to tell your representative and senators to read the 28 pages and help release them to the American people. Call or write one or all three of them today.

*Status of H.Res.428 Cosponsors

  • Stephen Lynch (D, MA-8) Has cosponsored H.Res.14
  • Thomas Massie (R, KY-4) – Has cosponsored H.Res.14
  • Lacy Clay (D, MO-1)
  • Lloyd Doggett (D, TX-35)
  • John Duncan, Jr. (R, TN-2)
  • Keith Ellison (D, MN-5)
  • Gene Green (D, TX-29)
  • Alcee Hastings (D, FL-20)
  • James McGovern (D, MA-2)
  • Collin Peterson (D, MN-7)
  • Charles Rangel (D, NY-13)
  • Dana Rohrabacher (R, CA-48)
  • Mark Sanford (R, SC-1)
  • Louise Slaughter (D, NY-25)
  • Ted Yoho (R, FL-3)
  • Paul Broun (R, GA-10) – Retired
  • Howard Coble (R, NC-6) – Retired
  • Michael Grimm (R, NY-11) – Resigned
  • Vance McAllister (R, LA-5) – Lost election
  • Ed Pastor (D, AZ-7) – Retired
  • Steve Stockman (R, TX-36) – Retired

Intel Committee Prevents House Rep from Reading the 28 Pages

Congressman Alan Grayson
Congressman Alan Grayson

According to a Dan Christensen story published today at Broward Bulldog, the House Intelligence Committee has refused Florida Democratic Congressman Alan Grayson’s request to read the classified 28-page finding on foreign government support of the 9/11 hijackers.

This is the first refusal of a request to read the 28 pages that 28Pages.org is aware of and—given Congress’ role in overseeing national defense and counter-terror policy—it’s a troubling development. According to the Broward Bulldog report, Grayson’s request was denied on Dec. 1 in an 8-4 vote that fell directly down party lines, with the GOP prevailing.

Grayson told the Bulldog the refusal was orchestrated by outgoing committee chair Mike Rogers, who is leaving the House and launching a career in radio. He said the action was retribution for his criticism of the federal government’s mass surveillance programs:

“Why was I denied? I have been instrumental in publicizing the Snowden revelations regarding pervasive domestic spying by the government and this is a petty means for the spying industrial complex to lash back,” Grayson said last week, referring to National Security Agency leaker Edward Snowden.

Though the House Intelligence Committee is charged with overseeing the country’s spy agencies, Rogers has been frequently accused of instead serving as their unconditional—and, at times, dishonest—public defender. It’s also worth noting that Rogers is a former FBI agent, and the contents of the 28 pages may be every bit as embarrassing to the FBI, CIA and NSA as they are to Bush administration officials, Saudi Arabia and other countries with ties to the 9/11 hijackers.

Echoing charges of deception leveled against Rogers in other places, Grayson accused Rogers of misleading committee members ahead of the vote:

“Congressman Rogers made serious misrepresentations to other committee members when he brought this up,” Grayson said in a telephone interview. “When the Guardian reported on the fact that there was universal domestic surveillance regarding every single phone call, including this one, I went to the floor of the House and gave a lengthy speech decrying it.”

“Chairman Rogers told the committee that I had discussed classified information on the floor. He left out the most important part that I was discussing what was reported in the newspaper,” said Grayson. “He clearly misled the committee for an improper purpose: to deny a sitting member of Congress important classified information necessary for me to do my job.”

Hopefully, the committee’s refusal of permission will—by drawing attention to the redacted 28-page passage found in the report of a joint Congressional inquiry into 9/11—prompt other House members to seek permission themselves.

Read Christensen’s entire story here, then watch him describe the FBI’s stonewalling of his research into the agency’s investigation of a 9/11 cell in Sarasota.

REDACTED w911Encourage your own House rep to read the 28 pages. Make a quick phone call or send a letter we’ve drafted for you.