“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.

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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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Questions Swirl Around 28 Pages Declassification Process

There’s no shortage of news in the drive to declassify 28 pages on foreign government links to the 9/11 hijackers. Of foremost concern, uncertainty continues to swirl around precisely what will happen at the end of the intelligence community’s declassification review of the 28 pages. Meanwhile, lobbyists for Saudi Arabia unveiled some some new marketing material, a House hearing examined Saudi Arabia’s position in the fight against terrorism, and Rand Paul is trying to tie 28 pages declassification to a major piece of legislation.

Declassification Process In Need of Its Own Transparency

James Clapper
James Clapper

When former Senator Bob Graham—along with Rep. Walter Jones and Rep. Stephen Lynch—met with Director of National Intelligence James Clapper last week, Graham was surprised when Clapper suggested that the final move would be left to the Congress.

Graham told Carl Hulse of the New York Times, “No one has ever questioned that this is a decision that rests at the White House. The idea of adding another elongated, contentious step to the process is befuddling.”

When Dan Christensen of FloridaBulldog.org first broke the story of Clapper’s confusing comments, some observers interpreted that as possibly referring to a vote of the House or Senate intelligence committees. However, Graham says Clapper hinted at a scenario far more worrisome to transparency advocates. Wrote Hulse:

Mr. Graham said Mr. Clapper had compared the approach to the handling of a Senate report on C.I.A. torture of terror detainees. That document was reviewed by the Obama administration, which redacted parts of it over security concerns, and the Senate ultimately released an executive summary. But that was a messy process that took months of bitter fighting to resolve.

Responding to the Times story yesterday, the September 11th Advocates—a group of activist 9/11 widows—issued a two-page statement expressing alarm over the idea that the 28 pages could follow the same path as the torture report. In addition to expressing concern over the likelihood for delays, the group is also concerned about the idea that the final product would be a synopsis of the pages rather than full declassification: “Executive summaries are not meant to reveal facts or the truth— they are used to hide the facts and the truth. Thus, we find Clapper’s suggestion unacceptable.”

Reached yesterday by 28Pages.org, Rep. Jones seemed hopeful for a more straightforward White House recommendation to declassify the material, promptly followed by in a simple vote from the intelligence committees or the full House and Senate. “If President Obama says, ‘I recommend that we declassify the 28 pages,’ I don’t think it would take 10 minutes for the House and Senate to do it. There’s just too much American interest in this,” he said.

The September 11th Advocates claimed that the continued classification of the 28 pages violates the executive order that governs classification. Specifically, they noted that Executive Order 13526 forbids the use of classification to prevent embarrassment to a person, organization or agency, or to delay the release of information that does not require protection in the interest of national security—flawed rationales that have been alluded to by CIA Director John Brennan and the two chairmen of the 9/11 Commission.

A spokesperson for Clapper declined both a New York Times and 28Pages.org request to clarify his remarks to Graham: It looks like it will be up to the White House to provide the American people with a clear understanding of the declassification end-game.

Saudi Lobby on the Offensive

Front Cover of Saudi Arabia's Counterterrorism Paper
Saudi Arabia’s Glossy Counterterrorism Paper

Last week, Politico revealed that Saudi lobbyists were distributing a slick, 104-page white paper extolling the kingdom’s dedication to countering terrorism. Yesterday, The Hill’s Julian Hattem reported that the lobbyists’ collateral package had grown to include a 38-page prebuttal of the 28 pages, and that Saudi lobbyists are characterizing proponents of 28 pages declassification as “delving into conspiracy theories.”

That term is rarely used in serious discussions of the 28 pages, however it was central to a highly Saudi-friendly paper on the topic published last week by the Center for Strategic and International Studies—and then scathingly critiqued by 28Pages.org. CSIS accepts money from Saudi Arabia and a who’s who of defense companies that call the kingdom a customer.

We’ve obtained and posted both the Saudi white paper and 28 pages prebuttal so you can see precisely what the Saudis are selling.

House Hearing on Saudi Arabia and Counterterrorism

Rep. Dana Rohrabacher

Yesterday, Texas Congressman Ted Poe chaired a hearing of a House foreign affairs subcommittee that focused on Saudi Arabia and counter-terrorism. (Archived video here.) A few highlights:

  • As The Intercept’s Alex Emmons reported, when the panel of witnesses was asked by California congressman and House Resolution 14 cosponsor Dana Rohrabacher if they believed “the royal family of Saudi Arabia did not know and was unaware that there was a terrorist plot being implemented that would result in an historic attack in the United States,” only two of the four raised their hands. One of the doubters was 9/11 Commission member Tim Roemer, who declared it too difficult a question to answer with a show of hands—perhaps owing to the vast size of the royal family.
  • Rohrabacher said, “We are intentionally ignoring who’s financing (terrorism). It’s clear to all of us…that the Saudis and the Saudi royal family have been right up to their eyeballs in terrorist activity and supporting the terrorist activity of radical Islamic forces in the Middle East.”
  • The panelists were uniform in their support of releasing the 28 pages. Roemer said, “The 9/11 families deserve it, the American people deserve it, and justice deserves it. We have a right to transparency and sunlight.”
  • Poe said he has read the 28 pages and supports their release, but is notably absent from the list of cosponsors of HRes 14.
  • Georgetown University’s Dan Byman said the biggest beneficiary of Saudi intervention in Yemen has been Al Qaeda in the Arabian Peninsula.
  • Rep. Brad Sherman said Saudi Arabia can’t claim to oppose terrorism while supporting extremism: “It’s time for Saudi Arabia to come clean.”

Rand Paul Working to Catch-Up with House Allies

Senator Paul, who last year introduced a bill with Sen. Ron Wyden that would direct the president to declassify the 28 pages, yesterday introduced an amendment to the National Defense Authorization Act that would do the same thing.

While a House resolution aimed at achieving the release of the pages has been steadily accumulating cosponsors—reaching 62 this morning—the Senate bill has inexplicably languished, even after 60 Minutes thrust the issue into nationwide headlines last month and a number of senators advocated their declassification.

New York’s Kristin Gillibrand was an original cosponsor of the Senate bill; in stark contrast to what House declassification leaders Walter Jones, Stephen Lynch and Thomas Massie have accomplished, Paul and Wyden have yet to persuade even one additional senator to officially sign on to a cause that has wide public support.

This is the second time Paul has pursued a 28 pages amendment to the NDAA. Last year’s amendment was not taken up for a vote.

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Trump: “Secret Papers” May Link 9/11 to Saudi Arabia

911 WTC aerial2Defending his attention-grabbing assertions that the U.S. invasion of Iraq was an enormous mistake facilitated by the George W. Bush administration’s misleading of the American people, Republican presidential candidate Donald Trump this week indirectly referred to 28 classified pages said to link the Kingdom of Saudi Arabia to the 9/11 attacks.

“It wasn’t the Iraqis that knocked down the World Trade Center. We went after Iraq, we decimated the country, Iran’s taking over…but it wasn’t the Iraqis, you will find out who really knocked down the World Trade Center, because they have papers in there that are very secret, you may find it’s the Saudis, okay? But you will find out,” Trump said at a Wednesday campaign event in Bluffton, South Carolina.

Trump’s implied promise to declassify 28 pages from a 2002 joint congressional intelligence inquiry into 9/11 sets him apart from the remaining Republican and Democratic presidential aspirants, filling a gap created when Rand Paul suspended his campaign. Last summer, Paul introduced Senate Bill 1471, which, if passed, would direct the president to release the 28 pages, and he pledged to release them himself if elected to the White House. Green Party candidate Jill Stein has also called for their release. (Then-Senator Hillary Clinton co-signed a 2003 letter to President Bush demanding the release of the 28 pages, but has been silent on the topic since.)

Vague Reference Dampens Impact

Trump’s comments brought renewed attention to the 28 pages. However, the impact would have certainly been greater had he specifically referred to “28 pages” rather than cryptically referencing “secret papers”—which he did time and again on the campaign trail, in an interview with Fox News and during CNN’s Thursday night town hall.

Given the dearth of mainstream media coverage of Trump’s Saudi Arabia reference, it’s clear his vague allusion to “secret papers” left journalists baffled. For example, though Mediaite’s Tommy Christopher was among the first to report it, his brief piece struck a snarky tone, made no reference to the 28 pages, and concluded with a dismissive statement that “no evidence has ever been presented that the government of Saudi Arabia was behind the attacks of 9/11.” Following his lead, most of those sharing the Mediaite story on social media ridiculed the notion that there are “secret papers” implicating the Saudis.

However, Graham, who co-chaired the intelligence inquiry that produced the 28 pages, said “they point a very strong finger at Saudi Arabia as being the principal financier of 9/11.” Two of the 9/11 hijackers received financial, lodging and other assistance from a Saudi citizen who lived in San Diego and who is widely thought to have been an operative for the kingdom. There are also serious questions—and a FOIA lawsuit—swirling around a wealthy Saudi family that had ties to Mohammed Atta and which fled Sarasota two weeks before 9/11.

Jeb on the 28 Pages: From Shrugs to Sarcasm

When asked about the 28 pages last summer, Jeb Bush said he’d never heard of them. This month, asked if he would like to see the 28 pages his brother classified, Bush sarcastically replied, “Yeah, I’d like to see ’em. You got ’em?”

Among the many who would like to “see ’em”: 9/11 family members and survivors whose lawsuit against the Kingdom of Saudi Arabia has been imperiled by what former Senator Bob Graham calls a “pervasive pattern of covering up the role of Saudi Arabia in 9/11, by all of the agencies of the federal government, which have access to information that might illuminate Saudi Arabia’s role in 9/11.”

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CNN’s Smerconish: “Mr President, please release the 28 pages”

Smerconish CNN

Yesterday, CNN’s Michael Smerconish concluded his weekly show with a segment on those still-classified 28 pages that document indications of foreign government financial support of the 9/11 terrorists. He ended with a direct plea: “Mr. President, please release the 28 pages before we mark yet another 9/11 anniversary.”

On Friday, Obama hosted Saudi Arabia’s King Salman at the White House. Smerconish highlighted the fact that the president’s hospitality came one week before the 14th anniversary of the 9/11 attacks—attacks that, according to former Senator Bob Graham, were enabled at least in part by financial and other assistance furnished to the hijackers by the kingdom.

Smerconish also noted that the nation is marking another anniversary: It’s been a year or more since the U.S. intelligence community was tasked with reviewing the 28 pages for declassification. “In other words, the review has now taken more than 10 days for every single page with no resolution—and that’s inexcusable,” said Smerconish.

As 28Pages.org recently observed, this milestone also means the review has already taken twice as long as the entire joint congressional inquiry that produced the 28 pages as part of a report spanning more than 800 pages.

On his SiriusXM radio show on Friday, Smerconish talked to Senator Rand Paul, former senator Graham and 28Pages.org director Brian McGlinchey about the campaign to declassify the pages.

Graham said, “I think the evidence that at least some of the hijackers received financial and other support from the agents of Saudi Arabia is incontrovertible. My own suspicion is that when those materials are released, it’s going to be found that there was a network of support of the 19 hijackers, which allowed this group of men, most of whom didn’t speak English, most of whom had never been in the United States, and most of whom had very limited education, to carry out the complicated plot that they did on 9/11.”

Senator Rand Paul
Senator Rand Paul

Paul, who in June introduced Senate Bill 1471, which presses the president to declassify the material, said, “There are things in the 28 pages that everybody should be allowed to read and make their own decision on.” Speaking more broadly about the ongoing scourge of Middle East terrorism, Paul said, “Frankly, I think Saudi Arabia has been part of the problem with regard to ISIS, with indiscriminately putting arms into the Syrian civil war…so have the Qataris.”

Paul’s sentiments echo Graham’s previous assertion that the continued secrecy of the 28 pages—by shielding scrutiny of Saudi funding of Islamic extremism—enabled the rise of ISIS.

McGlinchey said, “One of the things that’s least known about this issue is how few of our elected representatives on Capitol Hill have themselves bothered to read the 28 pages. We estimate that it’s probably in the low dozens of the 535 or so senators and representatives who have actually bothered to take 30 minutes to read them.”

Asked by Smerconish where presidential candidates other than Paul stand on the issue, McGlinchey pointed out that presidential candidates Lindsey Graham and Ted Cruz* have both admitted they haven’t read the 28 pages and that Jeb Bush—whose brother famously classified them—said he’s never heard of them.

McGlinchey also noted that Hillary Clinton, Joe Biden and John Kerry were among 46 senators who signed a 2003 letter to George W. Bush urging him to declassify the 28 pages, and wondered what actions they took on the issue upon ascending to positions in the Obama White House. Smerconish resolved to ask them if presented with the opportunity.

*Update: On April 15, 2016, Ted Cruz said, “I have reviewed these pages and believe that they should be released.”

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Paul Offers NDAA Amendment to Drive Release of 28 Pages

Senator Rand Paul
Senator Rand Paul

Following through on intentions he announced earlier this week, Senator Rand Paul today offered an amendment to the pending National Defense Authorization Act (NDAA) that would require the president to declassify 28 pages on foreign government links to the 9/11 hijackers. The language is identical to S.1471, the bill Paul introduced on Monday with Senators Ron Wyden and Kirsten Gillibrand.

In a story on Paul’s new move, The Hill’s Julian Hattem said the proposed amendment (No. 1680) “heightens the profile of the fight and may increase the stakes for the opponents.”

Speaking via press release, Paul said, “For over 13 years, the family members of the victims of September 11, 2001 terrorist attacks have been deprived of the details surrounding the redacted 28 pages of the 9/11 Congressional Inquiry. I firmly believe the American people deserve a government that instills trust and a restoration of their sense of security, and think my amendment is a step in the right direction.”

Flushing Opponents of the 28 Pages Movement into Daylight

While there are a growing number of vocal champions of the declassification of the 28 pages, those who want the 28 pages kept under wraps have worked quietly and effectively out of public view.

As we wrote earlier this year, “It’s likely that among the most powerful of those unseen opponents of 9/11 transparency are two strange bedfellows: The Kingdom of Saudi Arabia—which has fueled the growth of terror, and the U.S. intelligence community—which is charged with thwarting terror.”

Paul’s amendment to the must-pass NDAA could force some of those opponents—and, more specifically, their Senate allies—out of the shadows.

In addition to Wyden and Gillibrand, there are 11 other senators who, if they are consistent on principle, should support Paul’s amendment. Senators Patrick Leahy (VT), Barbara Mikulski (MD), Harry Reid (NV), Barbara Boxer (CA), Patty Murray (WA), Dick Durbin (IL), Jack Reed (RI), Chuck Schumer (NY), Bill Nelson (FL), Tom Carper (DE) and Maria Cantwell (WA) each signed a 2003 letter asking then-President George W. Bush to release the 28 pages.

Similar 2003 Move Thwarted by McConnell

This isn’t the first time a senator has tried to elevate the 28 pages by way of an amendment to a bill. In October 2003, North Dakota Democrat Byron Dorgan offered an amendment to the Foreign Operations, Export Financing and Related Programs Appropriations Act, urging Bush to reverse his decision to redact the 28 pages.

Dorgan offered the amendment twice, but was thwarted on each attempt by then-GOP Senate Majority Whip Mitch McConnell, who objected and claimed that the amendment was not germane to the legislation. (For transcripts of that debate—which included a supporting speech from Senator Bob Graham—click here and here.)

McConnell, who is now Senate Majority Leader, recently engaged in a high-profile—yet cordial—parliamentary battle with Paul over the extension of the PATRIOT Act.

Where Dorgan’s “sense of the Senate” amendment would have urged the president to declassify the 28 pages, Paul’s language is more forceful. His amendment and bill each say that, not later than 60 days after the NDAA’s enactment, “the president shall declassify and release to the public the previously redacted portions” of the report of the joint intelligence inquiry where the 28 pages are found.

Protecting “Sources and Methods” or Preventing Embarrassment?

However, the language may also offer President Obama an opportunity to continue his administration’s refusal to release the 28 pages, as it says he is not required to declassify sources and methods if that release would “result in imminent lawless action or compromise presently on-going national security operations.”

Rep. Walter Jones
Rep. Walter Jones

In 2003, Bush invoked “sources and methods” when defending his decision to classify the pages, saying “Declassification of that part of a 900-page document would reveal sources and methods that would make it harder for us to win the war on terror. … It would help the enemy if they knew our sources and methods.”

Among many who have read the 28 pages, Congressman Walter Jones denies that declassification would harm national security in any way, pointing to other motives for the secrecy. “There’s nothing in it about national security. It’s about the Bush administration and its relationship with the Saudis,” Jones told The New Yorker.

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