“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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Rand’s Next Stand: Declassifying Foreign Government Ties to 9/11

At a crowded Capitol Hill press conference today, Kentucky senator and presidential candidate Rand Paul (R) introduced legislation urging the president to declassify 28 pages on foreign government links to the 9/11 hijackers.

“We cannot let page after page of blanked-out documents be obscured behind a veil,” said Paul  “We cannot let this lack of transparency erode trust and make us feel less secure.”

Senator Rand Paul
Senator Rand Paul

Paul’s introduction of Senate Bill 1471—similar to House Resolution 14—represents a major milestone in the growth and visibility of the nonpartisan 28 pages movement.

Furthering his pattern of collaborating across the aisle on national security and other issues, Paul has already garnered the cosponsorship of Democrats Ron Wyden (OR) and Kirsten Gillibrand (NY). Paul and Wyden famously teamed up last week to block the extension of PATRIOT Act provisions that enabled the NSA’s bulk collection of Americans’ phone data.

Saying he was not alone in calling for the pages to be released, Paul noted that other advocates include “former heads of the CIA and the Republican and Democrat heads of the 9/11 commission” as well as bipartisan members of the House who are working to advance H.Res.14, which likewise urges the release of the 28 pages.

In an interesting twist, Paul announced his intention to next week offer the language of the bill as an amendment to the defense authorization bill. A similar maneuver was twice attempted in 2003 by then-Senator Byron Dorgan. Interestingly in note of last week’s high-profile clash over NSA surveillance, Dorgan’s effort was stymied on procedural objections initiated by Mitch McConnell.

At the press conference, Paul was joined by three congressmen who are leading the 28 pages effort in the House of Representatives—Walter Jones (R, NC), Stephen Lynch (D, MA) and Thomas Massie (R, KY)—and former Democratic Senator Bob Graham, who co-chaired the intelligence inquiry that produced the 28 pages. 9/11 family members also spoke, including Terry Strada, national chair of 9/11 Families and Survivors United for Justice Against Terrorism.

Graham: Release Will Prompt Reconsideration of Saudi Relationship

Of the speakers, former Senator Bob Graham, who co-chaired the inquiry that produced the 28 pages as part of a much larger report, spoke most pointedly about the 28 pages and what they reveal: “The 28 pages…go to the question of who financed 9/11 and they point a strong finger at Saudi Arabia.”

According to Graham, the release of the 28 pages will have broad ramifications. “The 28 pages are very important, and will…inform the American people and, in so doing, cause the American government to reconsider the nature of our relationship with Saudi Arabia.”

Graham said the 28 pages are “emblematic of a pattern of withholding information, unnecessarily and to the detriment of the American people.”

Former Senator Bob Graham
Former Senator Bob Graham

Graham offered a highly visual example of that pattern of withholding, describing a request made to the Treasury Department for information it had on a Saudi-based foundation suspected of funneling money to al Qaeda. The Department of Justice responded by distributing a report summarizing what it knew about the foundation.

Holding a think bundle of paper aloft, Graham said, “Let me just show you what the report said.” He thumbed through perhaps a hundred pages—all of them entirely blacked out.

Congressman Jones, who has spearheaded the 28 pages movement in the House of Representatives, said, “One of my biggest disappointments on the House side is that we have gotten very few members from the areas that were impacted by 9/11 to join us in our House Resolution 14, which simply calls on the President of the United States to keep his word to the 9/11 families and declassify this information.”

Lynch: Secrecy of 28 Pages “a Disgrace”

Congressman Lynch said, “It is appalling, it is a disgrace to a country that prides itself on transparency and truth and justice that these 28 pages of this bipartisan, bicameral congressional inquiry remains classified after 14 years from those terrorist attacks. It is not just a mere deletion of a few words here and there as is typical in these reports …this is a full-fledged black-out of information.”

Lynch rebutted the notion that national security is served by keeping the 28 pages under wraps. To the contrary, he said, “I firmly believe the information contained in these 28 pages will better inform our national security protocol and inform our anti-terrorism policy going forward.”

Lynch also said he shared Jones’ frustration with the low support of the 28 pages resolution in the House and the difficulty in persuading members to read the 28 pages for themselves.

Massie: Legislators “Pretending to be Informed” on Terror

Congressman Massie said the 28 pages represented a bipartisan issue. “Unfortunately, it is bipartisan in two regards. You have Republicans and Democrats in the House and Senate who are leading the charge to release these pages, but you have two presidents, either of which could have released them: A Republican president who is the reason that they are secret, and a Democratic president who keeps them secret,” said Massie.

Massie noted that legislators are, on a daily basis, considering what steps to take at home and abroad to prevent another 9/11. All the while, he said, “some of the best intelligence we have is in these 28 pages and most of our colleagues in the House have not read them, yet they’re pretending to be informed on these issues and having a discussion on how to prevent the next 9/11, yet turning a blind eye to the 28 pages.”

According to The Hill’s Julian Hattem, only 25 House members requested permission from the House intelligence committee to read the 28 pages over the 24 months that ended on December 31. Seventeen have done so in the first five months of 2015.

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MAJOR DEVELOPMENT: Rand Paul, Ron Wyden to Introduce 28 Pages Bill in Senate

Senator Rand Paul
Senator Rand Paul

By Brian McGlinchey The growing, nonpartisan drive to declassify a 28-page finding on foreign government support of the 9/11 hijackers is about to take an enormous step forward with the introduction of a Senate bill urging the president to release the material to the public. Dramatically compounding the issue’s visibility, the bill is being introduced by high-profile Republican presidential hopeful Rand Paul of Kentucky. A spokesperson for Senator Paul told 28Pages.org that Oregon Democrat Ron Wyden will cosponsor the bill, which will serve as the upper chamber’s counterpart to House Resolution 14. Wyden is a member of the Senate intelligence committee. Paul will unveil the Transparency for the Families of 9/11 Victims Act at a Capitol Hill press conference on Tuesday, June 2 at 10:00 am, joined by Representatives Walter Jones (R, NC), Stephen Lynch (D, MA), Thomas Massie (R, KY) and former Democratic Senator Bob Graham.

Senator Ron Wyden
Senator Ron Wyden

Jones, Lynch and Massie introduced H.Res.14 and have been championing the issue—and seeking like-minded senators to lead the cause in the upper chamber—since December 2013. Aided by Graham, who co-chaired the joint congressional 9/11 inquiry that wrote the 28 pages as one chapter in a far larger report, their success in securing the leadership of Paul and Wyden represents a critical milestone for the 28 pages movement. As Paul and Wyden seek cosponsors for the bill, there are 11 senators whose support should—on principle, if not politics—be automatic:  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).  What do these 11 Democrats have in common? Months after the December 2002 release of the congressional intelligence report that holds the 28 pages, each of them signed a 2003 letter to President George W. Bush protesting his decision to redact the 28 pages and urging him to release them. In part, that letter read:

Unfortunately, because all but two pages of the entire section have been deemed too secret for public disclosure, the American people remain in the dark about other countries that may have facilitated the terrorist attacks. It has been widely reported in the press that the foreign sources referred to in this portion of the Joint Inquiry analysis reside primarily in Saudi Arabia. The decision to classify this information sends the wrong message to the American people about our nation’s anti-terror effort and makes it seem as if there will be no penalty for foreign abettors of the hijackers…Protecting the Saudi regime by eliminating any public penalty for the support given to terrorists from within its borders would be a mistake.

Among those 11 natural candidates to join the Paul-Wyden bill, one stands out: Schumer led the 2003 letter-writing effort. At the time, he said, “The bottom line is that keeping this material classified only strengthens the theory that some in the U.S. government are hellbent on covering up for the Saudis. If we’re going to take terrorism down, that kind of behavior has got to be nipped in the bud and shedding some light on these 28 pages would start that process.”

The 28 Pages and the Ongoing Scourge of  Terrorism

Calling the bill the “Transparency for the Families of 9/11 Victims Act” is an important acknowledgement that 9/11 family members deserve to know the full circumstances of their loved ones’ murders—and to access information that could be useful in lawsuits they’ve filed against the Kingdom of Saudi Arabia. Then again—given the broad impact of 9/11 and the ensuing “War on Terror,” 9/11 transparency is truly owed to every American citizen and to people all around the world. Former Senator Graham and House leaders of the 28 pages movement who’ve read the 28 pages argue that their release is vital to the ongoing struggle with terrorism. According to Graham, “the 28 pages primarily relate to who financed 9/11 and they point a very strong finger at Saudi Arabia as being the principal financier.” He has also said the U.S. government’s shielding of Saudi Arabia’s role in funding extremism helped pave the way for the rise of ISIS. The House’s Lynch made a similar point in a 2014 story written by the Boston Globe’s Bryan Bender:

(Lynch) believes the information has direct bearing on the new war against the Islamic State in Iraq and Syria and other militant Sunni Muslim groups that are believed to be drawing some of their funding from the same Arab states that America considers key allies. The revelations are central to understanding “the web of intrigue here and the treacherous nature of the parties we are dealing with — the terrorists and their supporters,” Lynch said in an interview.

Kentucky Republican congressman Thomas Massie, in a memorable 2014 press conference, described the experience of reading the 28 pages as “shocking” and said “I had to stop every couple of pages and…try to rearrange my understanding of history…It challenges you to rethink everything.” (Watch it here.) 9/11 family members say President Obama, on two different occasions, gave assurances that he would release the 28 pages. Last September, responding to a report on the 28 pages by CNN’s Jake Tapper, the White House’s National Security spokesperson said, “Earlier this summer the White House requested that (the Office of the Director of National Intelligence) review the 28 pages from the joint inquiry for declassification. ODNI is currently coordinating the required interagency review and it is ongoing.” It takes the average adult about 28 minutes to read 28 pages, but more than 8 months after the White House statement—and almost 14 years since the September 11 attacks—the pages remain under close guard in the basement of the United States Capitol. Brian McGlinchey is the founder and director of 28Pages.org

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