Article 1, Section 6 of the Constitution establishes an absolute free-speech right for members of Congress on the floor or in committee, even if they are disclosing classified material. It states that “for any Speech or Debate in either House, they shall not be questioned in any other Place.”
Within hours of Colorado Senator Mark Udall losing his reelection bid last week, transparency activists were talking about how he should go out with a bang and put the Senate intelligence committee’s torture report into the congressional record. The report is said to detail shockingly brutal abuse of detainees by the CIA during the George W. Bush administration, as well as rampant deception about the program by top officials. But the Obama White House is refusing to declassify even a summary of the report without major redactions. And Republicans take over the Senate in January.
Udall is one of two senators — along with fellow Intelligence Committee member Ron Wyden — who have consistently demanded greater transparency from the intelligence community. If he made the report public on the Senate floor or during a hearing, he couldn’t be prosecuted.
The last time any senator did anything nearly so grand was in 1971, when Mike Gravel, two years into his 12 years representing the state of Alaska, entered 4,000 pages of the Pentagon Papers into the congressional record just before the U.S. Supreme Court lifted an injunction on publishing them in the press.
Now, Gravel is urging Udall to join the club.
“If Udall wants to call me, I can explain this to him,” Gravel, pictured above, said in a phone interview from his home in Burlingame, Calif.
Gravel’s recommendation: “What he’d have to do is call a subcommittee meeting like I did, late at night.”
Back in 1971, Gravel first tried to read the Papers from the Senate floor. He even got himself rigged up with a colostomy bag so he wouldn’t need to take breaks. But he was stymied by an unexpected procedural move.
So he moved to Plan B: He called a late-night subcommittee meeting with almost no notice to the other members.
Gravel read some of the Pentagon Papers out loud, but challenged by dyslexia and overcome with emotion, he finally opted for another way: “I asked for unanimous consent to put it in the record of the subcommittee. And there was no one there to object.”
Once the Papers were officially in the record, Gravel handed out copies to reporters.
“If Udall wanted to do this, he could do the same thing.” Gravel said. “Hell, I’d fly into Washington and help him pass it out.”
If it’s more convenient, Gravel said, he’ll be in Udall’s home state of Colorado in a couple weeks. “If he wants to, we can get together over Thanksgiving weekend, and talk this thing out so he feels comfortable.”
The two biggest reasons not to do it, Gravel said, are no longer relevant. “The biggest fear you have is peer pressure. What are my members of the Senate going to think of me? But I’ve got to say, if you lose office, like he has, he’s got no more peer pressure.”
Similarly, Udall would no longer have reason to fear Senate discipline. Although the Constitution’sSpeech and Debate Clause renders members of Congress immune from executive-branch penalties, the Senate itself has rules that make disclosing classified information punishable by “censure, removal from committee membership, or expulsion from the Senate.”
Colorado voters have already expelled Udall, Gravel said. “And this would give him a real political legacy.”
Like Gravel before him, Udall chairs a subcommittee. In Udall’s case, it’s the Armed Services Committee’s Subcommittee on Strategic Forces.
The Senate’s rules on scheduling hearings are exactly the same as they were in 1971: Committee and subcommittee chairmen are required to give a week’s notice when they schedule a hearing — “unless the Committee or subcommittee determines that good cause exists for beginning such hearings at an earlier time.”
People who understand Senate rules far better than I say that, even if Udall’s fellow senators challenged the official status of such a hearing, the worst they could do is make him pay the official Senate stenographer out of his own pocket. The record would still be the record …
- Send Email To Sen. Udall Asking Him To Do The Honorable Thing — Release The Suppressed Torture Report: America needs to know the truth about the torture program done in our name and paid for with our tax money. Link Here