Attempts to find out what Congress actually knew about the 2002 torture of detainees held by the CIA are running right into the brick wall of classification. Only this time, it's not just CIA stonewalling that's keeping the facts concealed. Members of Congress are quick to put the classification muzzle on themselves
In February 2003, Rep. Jane Harman (D-CA) wrote a letter
to the CIA cautioning "against destruction of any videotapes" of al-Qaeda interrogations. It's not clear whether she objected to any actual interrogation techniques
in the letter, and she says that because the letter is classified, she was "not free to mention this subject publicly until Director Hayden disclosed it yesterday." Harman is seeking to have the CIA declassify the letter.
Similarly, Jay Rockefeller said
he wrote to the CIA in May and September 2005 to seek clarification about interrogation techniques. Unfortunately, those letters are also classified, and neither Harman nor Rockefeller appear inclined to release them.
But wait: neither Harman nor Rockefeller are CIA employees. How could letters they send to the CIA
be classified? When would they become classified? If Harman and Rockefeller kept the letters in a drawer and never mailed them, would they still
I asked the country's preeminent classification expert, Steve Aftergood of the Federation of American Scientists, to enlighten me on this. Whenever an official receives information known to be classified -- as Harman and Rockefeller did through their perches on the intelligence committees -- "they are obliged to protect that document and to treat it as classified," Aftergood says. "Even if it is never circulated."
In other words, their letters are classified because the information within them is classified. It's called "derivative classification." And even though members of Congress might be in possession of classified information, that information only becomes declassified by an act of the President or his duly-appointed deputy. So if I publish a leaked classified document, the disclosure won't affect the classification status of that document -- though officials may then simply acknowledge what's classified, as the jig is sort of up. "As a practical matter, officials will often acknowledge classified information once it has become public," Aftergood explains in an e-mail. "So, for example, the President decided to acknowledge the Terrorist Surveillance Program after the NYT reported on it. But it was his decision to make."
That may not be the end of the story. Via Matt Yglesias -- longtime ally of snitches and creator of the logo you see above -- comes this Michael Froomkin analysis finding that the Constitution's Speech or Debate Clause gives members of Congress, if they're so inclined, the ability to put classified information into the public sphere with Constitutional protection. It's an esoteric argument and not at all a matter of settled Constitutional law, but it's an option. Apparently then-Sen. Mike Gravel (D-AK) used the clause to enter the Pentagon Papers into the Congressional Record.
Given that classification is used as a political cudgel to cut off debate, perhaps Harman and Rockefeller would be interested in putting the clause to the test by releasing their letters -- minus sources-and-methods -- and daring the administration to prosecute.