Mark Udall, a Democratic senator from Colorado who lost his re-election campaign earlier this month to Republican Cory Gardner, has been one of the most prominent national critics of the CIA and NSA’s overreach (and alleged overreach) since 9/11. As a senator, he has access to material about those agencies that isn’t available to the public, and he has advocated for the release of information about CIA interrogations that the CIA and the White House would like to keep classified. Now civil liberties advocates are urging him to take advantage, before his term ends, of a specific legal immunity granted to members of Congress by reading and/or entering otherwise confidential CIA/NSA material into the Congressional Record. Conor Friedersdorf at the Atlantic explains the legal context:
Members of Congress can reveal classified information in their capacity as legislators without facing legal consequences. As the U.S. Constitution puts it, “The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. 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 “Speech or Debate Clause” was most famously invoked in 1971, when Senator Mike Gravel called a late-night subcommittee meeting and entered the Pentagon Papers into the Congressional Record, liberating them for the public and thwarting executive-branch officials who insisted that they should be suppressed.
Gravel, who represented Alaska, spoke to the Intercept and urged Udall to follow in his footsteps. “If Udall wants to call me, I can explain this to him,” he said. Though in the past Udall has said he would not disclose confidential information, he did not rule out using the “Speech or Debate Clause” to publicize CIA malfeasance when asked about it last week by the Denver Post:
“Transparency and disclosure are critical to the work of the Senate intelligence committee and our democracy, so I’m going to keep all options on the table to ensure the truth comes out,” Udall said.
That includes a little-used privilege of the U.S. Constitution called the “Speech or Debate Clause,” which has been suggested by civil libertarians to shake loose the information.
“I mean, I’m going to keep all options on the table,” said Udall when asked specifically about that method.
Udall’s term in Congress ends on Jan. 3, 2015.