Bruce Ackerman on Congressional Publication of Classified Information and the Speech and Debate Clause

By Jack Goldsmith
Sunday, August 4, 2013, 5:40 PM

Bruce Ackerman has a piece in the FP arguing that Senator Wyden, who has been disappointed in the quantity and quality of Executive branch disclosures related to surveillance, should “let Americans know the truth, even at the cost of revealing some classified information presented to him in secret sessions.”  Ackerman argues that the right of members of Congress to reveal classified information is protected by the Speech and Debate clause:

The U.S. Constitution guarantees that elected representatives “shall not be questioned in any other Place … for any Speech or Debate in either House.” In other words, they cannot be prosecuted for reading classified material into the public record -- and it is up to them, and them alone, to decide what is worth talking about. . . .

In the United States, congressional freedom of speech was last put to the test during the Pentagon Papers affair at the time of the Vietnam War. Invoking the "speech or debate clause," Daniel Ellsberg -- with whom Snowden has been compared -- approached members of Congress and tried to persuade them to submit the Pentagon Papers into the Congressional Record. Only after they refused did he leak them to the New York Times and Washington Post. When Richard Nixon's administration obtained injunctions in the lower courts, Ellsberg returned to Congress with more success. With the decision still pending before the Supreme Court, Sen. Mike Gravel (D-Alaska) placed 4,000 pages of the Pentagon Papers into the record at a committee hearing. Even if the court had failed to protect the newspapers, Gravel's action ensured that the truth would come out. A year later, the Supreme Court unanimously affirmed Gravel's right to publish documents labeled “Top-Secret: Sensitive” under the speech or debate clause.

In exercising his privilege, Gravel refused to publish parts of the Pentagon Papers that still endangered national security. If future congressmen act irresponsibly, the House or Senate has the authority to sanction them, since the Constitution only protects against reprisals in “any other place.”  At the extreme, the Constitution authorizes the expulsion of lawmakers by a two-thirds majority -- though this hasn't happened, except in two House cases involving bribery and corruption, since the Civil War.

Wherever the House or Senate draws the line, this much should be clear: Members should certainly have the right to tell the truth when administration officials have lost their credibility. This not only serves the cause of democracy, but it will deter further fabrications and distortions. When voters go to the polls in 2014, surveillance will be high on the agenda. They should not cast their ballots amid a haze of doubt as to the basic facts.