Friday, May 8

What the Pelosi-Briefing Claim Reveals - We need a Classified Crimes Act

Pelosi's consistent claim in light of arguments that she was informed about "Enhanced Interrogation" techniques is A) That she wasn't told the techniques were already in use and B) That She couldn't have done Anything about it ANYWAY!

Still I think she should have been able to do something, almost anything, to address Classified Crimes in Progress but unfortunately the current law doesn't allow for it.

It may be difficult for those who haven't had a security clearance to understand, but having access to classified information is often a much of a curse and a burden as it is a benefit.

You may get the information (some of it), but you can't do anything with it.

Under 18 USC 798

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

(3) concerning the communication intelligence activities of the United States or any foreign government; or

(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—

Shall be fined under this title or imprisoned not more than ten years, or both.

Ten years in prison, this is no joke - and it applies to members of Congress just as much as anyone else. If you been granted access to a secure program, you CAN NOT share that information with anyone who doesn't have access to that specific program. Not your spouse, not your kids, not your co-workers and not your congressional staff.


Now the canard has been raised that Pelosi (or Harman whose also been under this microscope) could have or should have objected somehow.

Objected to Who?

The best they could've done is write a sternly worded letter the way the Sen Rockefeller (and Jane Harmon -ht comments) did concerning NSA Wiretaps after he was supposedly "briefed" on the program.

Rockefeller, turning back to the NSA program in his letter, told Cheney: "Without more information and the ability to draw on any independent legal or technical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received."

The letter, whose existence was unknown to Rockefeller's staff, indicated that the three briefers were Cheney, then-CIA Director George J. Tenet and then NSA-Director Michael V. Hayden. The letter said the Senate intelligence committee's chairman, Pat Roberts (R-Kan.), was there, and it indicated, without naming them, the presence of then-Rep. Porter J. Goss (R-Fla.) and Rep. Jane Harman (D-Calif.), the ranking members of the House intelligence committee.

In hindsight, the letter seemed a rejoinder to President Bush's assertions that key congressional leaders were adequately briefed on the expanded NSA program and to his intimation that they did not seriously object. Rockefeller "was frustrated by the characterization that Congress was on board on this," said one official who is close to him and who spoke on background because of the topic's sensitive nature. "Four congressmen, at least one of whom was raising serious concerns, does not constitute being on board."

His letter was simply ignored, so fat lot of good THAT did. Cheney just BLEW HIM OFF, obviously because Cheney knew damn well there was nothing he could do about it. He couldn't call a hearing, he couldn't even tell his staff!

The National Security Act of 1947 requires that the Executive Branch provide congress with regular reports on it's intelligence activities. Yet time and time again we see that these reports are not provided, Congress is often told nothing or only given partial out-of-date information, and if they do get the data they have No Recourse if they happen to receiving alarming information.

We have to change this.

What occurred under the Bush Administration (as it has occurred with other Presidents) is that National Security Classification has been used to COVER UP ACTIVE CRIMES IN PROGRESS.

I'm going to suggest a radical idea here, since the problem seems to be that the law is preventing congress from ensuring the executive branch abides by the law.

Maybe, just maybe - Congress should Change the Law since being an alleged "co-equal" branch of government, making the law is what they're supposed to do. We can see clearly that the current process is broken. Congressional notification is simply being used as a CYA coupled with a Gotcha!

"See, we told you all along, and you didn't say or do anything and therefore you're complicit in the crime"

We all have to come to realize that's simply a load of bull, one that the Bushies were not just shovelling over Torture, but also Domestic Spying and many other programs as well.

However it's not an impossible problem to solve.

Congress needs to Amend the National Security Act to allow a secure channel for Whistle-blowers to access internal Inspector Generals and Ombudsmen when they suspect criminal activity is taking place under classified cover. They shouldn't need to resort to giving up their career and risking violating 798 by contacting the Press as former NSA Analyst Russel Tice did when he began talking to the New York Times about Illegal NSA Wiretaps.

As Tice describes in this report, the Bush Administration was specifically targeting journalists for data collection - the most likely reason for this is to catch Whistle-blowers like Tice and therefore maintain the Criminal Cover-up. The goal is clear, keeping the cover-up going by creating a Chilling Effect on Government employees, our SOLDIERS, the Press and even Congress itself (ie. Taping Harmon).

In additional to a guaranteed secure channel to internal administration oversight, various Whistle-blowers of Classified Crimes need a secure channel to Congress, and Congress needs the legal power to COMPELL Access to a program in a manner similar to a fully empowered Congressional Subpoena.

If a reluctant administration refuses to grant access to Congress, just as Bush denied Security clearance to the OPR in order to stall and shutdown their investigation into Domestic Surveillance - they need to power to force access - and conduct a secure investigation without allowing any genuine National Security Secret to be generally revealed.

798 should remain strong and prevent premature leaks of such an investigation prior to any potential referral to the DOJ, or calls for an Special Prosecutor.

In special cases, Congress may need the ability to Revoke a Programs Classified Status over the objections of a President by filing suit adjudicating the matter before a court similar to FISA.

Looking back over recent history we can clearly see a number of problems that an unaccountable unitarian executive has brought us. We need more than just disbarment for Yoo, Bybee and Bradbury. We need more than prosecutions for past crimes. We need more than wan assurances from our current executive that "times have changed" -- we need to SERIOUSlY start lobbying Congress to start untying their own hands, and give themselves the power to prevent future abuses by future Administrations.

These suggestions may not all be perfect or sufficient, certainly even the Obama Administration will push back against many of them - but if the abuses of the Nixon Administration brought us the FISA Court, the abuses of Bush should bring us some far far stronger medicine to salve what ailes this nation.


Contact Data:

Nancy Pelosi
District Office
450 Golden Gate Ave.
14th Floor
San Francisco, CA 94102
(415) 556-4862

Washington, D.C. Office
235 Cannon HOB
Washington, DC 20515
(202) 225-4965
Online Contact Form

Rep. John Conyers
* Washington Office: 202-225-5126
* Detroit Office: 313-961-5670
* Trenton / Downriver Office: 734-675-4084

Jay Rockefeller
217 West King Street
Suite 307
Martinsburg, WV 25401-3211
(304) 262-9285
(304) 262-9288 Fax

Washington, DC
531 Hart Senate Office Building
Washington, DC 20510
(202) 224-6472
(202) 224-7665 Main Fax
(202) 228-1610 Scheduling Fax
Contact Form

Sen Russ Feingold
Washington, DC
506 Hart Senate Office Building
Washington, DC 20510-4904
(202) 224-5323
TDD (202) 224-1280
Fax (202) 224-2725
Contact Form

U.S. Senator Chris Dodd
448 Russell Building | Washington D.C., 20510
Tel: (202) 224-2823 | Fax: (202) 224-1083

30 Lewis St Suite 101 | Hartford, CT 06103
Tel: (860) 258-6940/(800) 334-5341 —CT only
Fax: (860) 258-6958

Update: Ok, I've talked to or left a message with all the above members of Congress, several we're very supportive of the idea particular Feingold's office. Left two messages with Speaker Pelosi. I hope others make a few calls to their own Representatives, particular those sympathetic to this situation - but I can at least say these people have all now heard this idea. Hopefully we can keep the pressure building on this over time.

P.S.: When I previously posted this article on Dailykos the issue was raised that Pelosi and Harmon could have walked out of the briefing room onto the House Floor and said just about anything without fear of legal reprisals under the “Speech and Debate” clause from Article 1.

They 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 returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

This theory was tested in 1972 when Senator Mike Gravel (yes, that Mike Gravel) released the Pentagon papers within his subcommittee and published them in the public record. The government sued to bring his staff before a Grand Jury to help reveal the source of the leak (Daniel Ellsberg) and Gravel exerted the clause as a shield. Although the Court found that the shield in theory could apply to not just a House or Senate member but also their staff within the context of Congressional deliberations – they unfortunately didn’t find that Congress members had absolute immunity from committing what would otherwise be considered crimes on the House or Senate floor.
Decision of the Court on Gravel v U.S.

Legislative acts are not all-encompassing. The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but "only when necessary to prevent indirect impairment of such deliberations." United States v. Doe, 455 F.2d at 760.

Here, private publication by Senator Gravel through the cooperation of Beacon Press was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence.

There are additional considerations. Article I, § 6, cl. 1, as we have emphasized, does not purport to confer a general exemption upon Members of Congress from liability or process in criminal cases. Quite the contrary is true. While the Speech or Debate Clause recognizes speech, voting, and other legislative acts as exempt from liability that might otherwise attach, it does not privilege either Senator or aide to violate an otherwise valid criminal law in preparing for or implementing legislative acts.

From my reading the court actually ruled largely against Gravel's assertion of S&D, and in particular the clause has specific limitations in relation to "Treason or Felony" - and knowingly revealing classified information which might benefit an enemy nation fits the exact definition of "Treason" and certainly a "Felony" in my book, even if you do it on the floor of congress, and the information divulges the commission of a crime(s). IMO this doesn’t help solve the problem.

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