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Gravel to Wyden and Udall on NSA: Do What I Did Forty Years Ago

In 1971, Alaskan Senator Mike Gravel assisted Daniel Ellsberg by including the Pentagon Papers in the public record, putting himself at risk of indictment. In the subsequent case Gravel_v._United_States, the Supreme Court held that Article I, Section 6 of the Constitution protected the senator from prosecution.

“The Speech or Debate Clause,” Associate Justice Byron White wrote, “was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch.”

But the Clause seems to have disappeared from the debate today regarding whistleblower Edward Snowden and the information he shed on the NSA. Senators Ron Wyden (D-Oregon) and Mark Udall (D-Colorado), both of whom are on the Intelligence Committee, have said for a long time that they are worried about the direction in which the NSA might take the U.S. They are sorry for the government’s overreach and side with public opinion, they claim. But they have not yet taken the step that Gravel took in 1971, which is to make classified information public for the sake of protecting the country’s common law.

It is also the media that have forgotten about the Clause and have failed to remind the legislative branch as well as the American people that senators on the Intelligence Committee wield more power than we assume. In a letter to the New York Times editor, constitutional lawyer Bruce Fein emphasized the point, writing that “contrary to your editorial and many news stories, Members of Congress may disclose classified information about the National Security Agency’s surveillance programs in performing oversight or other legitimate legislative functions without fear of Executive Branch prosecution,” he wrote, citing the provision.

“Your readers deserve to know that urging U.S. Senators or Representatives to disclose classified details of the NSA’s ubiquitous spying to promote a national conversation about the programs in accord with President Obama’s professions would be constitutionally irreproachable,” he wrote.

That letter was never published.

The approach Wyden and Udall have taken is to write and sign, along with 24 other senators, a letter to James Clapper, the Director of National Intelligence who lied to Wyden earlier this year about data collecting while under oath, politely asking Clapper to reveal details about the collection of phone records.

“We are concerned that by depending on secret interpretations of the PATRIOT Act that differed from an intuitive reading of the statute, this program essentially relied for years on a secret body of law,” they wrote. “This prevented our constituents from evaluating the decisions that their government was making.”

The Clause, unlike a letter to the DNI, allows them to disclose the information they already have access to as members of the Intelligence Committee. They have a right, indeed an obligation, to uncover government projects that are illegal under the Constitution.

“The fact is that people like Wyden and Udall,” Gravel told Demos last week in a phone interview, “who I think are extremely fine Senators, don’t have the guts to put their political views aside. . . When you’re a part of the Senate, you’re a part of the club. If you do things that don’t sit well with the majority, which I’ve experienced, you receive a great deal of peer pressure. It’s a question of putting the principled issue over any selfish, personal issue.”

When senators are unable to come forward with information vital to the country’s wellbeing, Gravel said, it becomes an issue of complicity. The latest example, he said, is that of Senator Dick Durbin (D-Illinois) who, in the months leading up to the invasion of Iraq, chose not to reveal classified testimony from the intelligence community that he felt was at odds with what President Bush was telling the American public.

“He chose not to step forward because he was worried somebody would get killed,” Gravel said, referring to Durbin’s fear that if he leaked the information, a source might face serious consequences.

“He had more concern with that than concern over actual war,” Gravel continued. “So some people did get killed – more than 4,000 Americans and maybe more than a million Iraqis. Had he stepped forward, he would have thwarted any Democratic support that was given to the resolution that empowered the Bush administration to invade Iraq.”