Constitutional Clash: The Senate Intelligence Committee Torture Report as a Case Study of Congress’ Right to Access, Control, and Declassify National Security Documents By Mark Iozzi Congressional Investigations Professors Podesta & Leon Spring 2015 Mark Iozzi Congressional Investigations Introduction In March 2009, the Senate Select Committee on Intelligence (SSCI) set out to conduct a comprehensive investigation of the detainee interrogation program the Central Intelligence Agency (CIA) initiated following the 2001 terrorist attacks.1 More than three years after this investigation began, the effort produced a 6,700-page classified report, commonly known as the SSCI Torture Report.2 During the course of this investigation and the subsequent, multi-year negotiation over which portions of the report to release publically, Congress and the executive branch clashed in four general areas: (1) Congress’ right to access executive branch classified materials, (2) the terms under which Congress would be able to review these materials, (3) the executive branch’s right to investigate potential violations of these terms, and (4) Congress’ authority to declassify its findings. This paper uses these clashes in the SSCI investigation as a case study to analyze America’s balance of power in national security matters. It examines the struggle the SSCI investigation produced between legislators and executive branch officials and evaluates the legal authorities on either side of the debates. This long, heated investigation highlights the powers each branch of government can bring to bear, and illustrates how America’s constitutional system resolves conflicts in a controversial congressional investigation. Constitutional Clashes I. Congress’ Right to Access The SSCI investigation of the CIA detainee interrogation program began formally on March 5, 2009, with a 14 to 1 committee vote in support of Chairman Dianne Feinstein’s plan to 1 Mark Iozzi Congressional Investigations complete a comprehensive review of the program.3 The committee began by sending a document request to the CIA and all other executive branch agencies that had information on the CIA’s program.4 This request led to a prolonged negotiation over which materials the committee would be able to access and the conditions under which they would receive this access.5 Congress generally has broad constitutional authority to obtain executive branch documents, including highly classified materials.6 Although the Constitution does not expressly authorize congressional oversight investigations, the Supreme Court has established that the power to conduct these investigations is an essential legislative function implied by Article I of the Constitution.7 The Senate has delegated its legislative power to investigate the CIA and other intelligence agencies to the SSCI, which was explicitly established for this purpose.8 These rules also specify that the Senate intended the SSCI to have access to classified information.9 Although several congressional committees work with classified materials, the SSCI and its corresponding intelligence committee in the House are specifically empowered to deal with the unique requirements of receiving and safeguarding highly classified materials.10 Congress has required the President to establish mechanisms for controlling access to classified information,11 but the relevant executive orders do not contain provisions on how these materials should be disclosed to Congress.12 Unlike most individuals with access to classified documents, members of Congress have never been required to undergo security clearance investigations.13 Instead, across the federal government, constitutionally elected officers including members of Congress, the President and Vice President, Justices of the Supreme Court, and other federal court judges are not required to obtain security clearances.14 Instead, they are 2 Mark Iozzi Congressional Investigations presumed to be trustworthy, and granted access to the documents they need to fulfill their constitutional responsibilities.15 Unlike members of Congress, congressional staff must obtain security clearances under a process Congress imposes on itself and administers with help from executive branch agencies.16 In addition to requiring security clearances for staff, Congress also manages several “sensitive compartmented information facilities” on Capitol Hill.17 These facilities are specifically designed to store and review classified materials under the same standards for secrecy required for similar facilities in the executive branch.18 Although members and their staff have the authority and facilities needed to access classified information, they must still satisfy the ‘need to know’ requirement before gaining access to specific documents.19 Members of Congress tend to believe they always meet this requirement by virtue of their constitutional oversight responsibilities. The validity of this claim for members of the intelligence committees is clearly established,20 and the mere fact that information is classified, likely cannot be used as a justification for withholding it from Congress.21 The executive branch is statutorily obligated to update the intelligence committees about most intelligence activities and covert actions;22 however, the statutes do not clearly specify the level of detail the executive branch must disclose.23 Executive branch legal opinions have argued that the President has final authority to determine whether a member of Congress has a need to know specific information.24 Although Congress has reviewed classified materials for a wide range of investigations, only one notable case over access to classified documents appears to have reached the courts.25 During a 1976 warrantless wiretapping investigation by a subcommittee of the House Interstate 3 Mark Iozzi Congressional Investigations and Foreign Commerce Committee, the subcommittee issued subpoenas for records of Federal Bureau of Investigation (FBI) wiretapping from the American Telephone and Telegraph Company (AT&T). 26 After repeated attempts to force the parties to negotiate a resolution on their own, the Court eventually rejected the executive branch’s claim that it had absolute discretion over national security materials.27 It held that although the President has extensive national security powers under the Constitution, Congress has other equally important constitutional powers over matters related to national security.28 The court also rejected Congress’ assertion that the Speech or Debate Clause29 prohibited judicial interference with Congressional investigations.30 Ultimately, rather than ruling on the merits, the court made an additional attempt to force a negotiated solution.31 The Court set general terms for the parties that helped them reach a final agreement.32 For example, the court permitted the Department of Justice (DOJ) to “limit the sample size of the unedited memoranda and prohibit committee staff from removing their notes from the FBI’s possession.”33 In the decades following this case, both parties have relied on negotiations, rather than continuing to seek judicial resolution to their disputes.34 Through this process, Congress and the executive branch have developed a longstanding practice of negotiating Congressional access to classified materials.35 Congress has numerous tools it can use to exert leverage, including exerting public pressure in the media, withholding Senate consent on nominations, and ultimately redirecting funding.36 In the SSCI investigation, after substantial negotiations, the SSCI and CIA reached an agreement. The CIA committed to provide the committee with broad access to most of the documents Chairman Feinstein wanted, under specific conditions described below. 37 4 Mark Iozzi Congressional Investigations In mid-2009, the CIA began to disclose thousands and then millions of pages of electronic documents to the SSCI staff in accordance with their agreement.38 The CIA provided these documents without any index or organizational structure,39 in what committee Chairman Feinstein described as a “true document dump.”40 The committee had negotiated for the right to review more documents than it could initially process; and, in the same negotiation, had agreed to terms that substantially limited the means by which its staff could conduct this work.41 II. The Terms of Review The agreement between SSCI and the CIA set strict requirements on how and where the committee staff could review classified materials for its investigation.42 As described above, the intelligence committees, and several other congressional committees, regularly access classified documents in their secured facilities on Capitol Hill.43 SSCI asked to follow this same process for this investigation, and requested that the CIA deliver the relevant materials to the Heart Senate Office Building.44 However, the CIA instead offered an alternative arrangement that would give the SSCI access to the documents at a designated CIA facility in Northern Virginia instead.45 The SSCI agreed to this arrangement, but insisted on several specific conditions.46 Through an exchange of letters, Chairman Feinstein and Vice Chairman Bond reached an agreement with CIA Director Leon Panetta that the CIA would provide the committee with a “stand-alone computer system,” “segregated from CIA networks” that would only be accessed by information technology personnel at the CIA.”47 The letters specified that the information technology personnel “would ‘not be permitted to’ ‘share