Update: Dems Gagged, not Self-Muzzled?

Well, I should have read my dose of Daily Kos if I wanted to understand why Democrats didn't publicly object to NSA spying before now. But there still remains an important question: are the contracts signed by members of Congress who received intelligence briefings superseded by the Speech And Debate Clause of Article 1 of the US Constitution, which gives Members immunity for anything said from floor of the House or Senate? I found one CIA analysis that suggests Members are constitutionally protected, and therefore cannot be gagged. But does this mean they can voluntarily gag themselves, and give up their Constitutional right? That seems just plain wrong. How could a member have any meaningful "oversight" of intelligence if they have no constitutionally protected right to debate the issues? What would be the point of getting intelligence briefings at all? I guess I'm still very confused. Where is a constitutional law scholar when you need one?

Rockefeller and Pelosi COULDN'T Release Their Letters
by DHinMI
Wed Dec 21, 2005 at 12:30:34 PM PDT

It appears that one of the GOP talking points on the domestic spying scandal is to denigrate and eve ridicule Jay Rockefeller's and Nancy Pelosi's letters to the White House protesting the spying policy divulged to them in classified meetings. This morning on NPR I heard GOPRepresentative Peter Hokestra claim that if Senator Rockefeller was really concerned about the domestic spying program revealed last week by the NYT, then he could have done more than write a letter.

Bullshit.

Well, let me clarify that. Rockefeller could have publicized the existence and actions of the program, but if he or any of the other members of Congress briefed on the program went public with their opposition, they would have been breaking the law. To fail to acknowledge that anyone briefed on this program essentially had no way to oppose or publicize the existence of the program without breaking the law is bullshit.

Here's a response to DHinMI clarifying what agreement members sign:

Before being briefed, each of them signed an agreement not to disclose the information until it is declassified or for 70 years, whichever comes first. Signing is voluntary and no one can be punished for refusal to sign unless their job specifically requires it. In the case of being a member of the House and Senate Intelligence committees it is required for membership on the committee but not for membership in the House or Senate. If you don't want to sign, don't joint the committee. Once they assumed one of the "big 4" leadership positions they signed a further agreement and in most cases you sign one for any specialized single topic briefing (like the one in question). Their only option was to not sign and not be briefed. I have seen that done. Once they signed and were briefed they were bound by the agreement which carries stiff penalties
(jail, money). This is exactly what people are facing in the Wilson leak case and will be used as a hammer to get pleas to lesser offenses. Once the President spoke of it they had the ability to ask for a classification ruling which is exactly what Rockefeller and Pelosi did. They still need that release even if it has already been spoken of openly else ware because the agreement/contract is
individual.

by ksuwildkat on Wed Dec 21, 2005 at 04:07:44 PM PDT

However, there is an counter-argument that I haven't seen adequately addressed.

the Speech and Debate Clause would have given Rockefeller or Pelosi absolute immunity from prosecution had they chosen to reveal the existence of this illegality to their colleagues. Of course, the prudent thing would have been to do so in closed session, probably of an Intel committee. But even if they had gotten up on the floor of their respective houses and spilled the beans, they were completely immune from prosecution. Not necessarily immune from the political fallout, including the possibility (however slim) of censure, expulsion, etc. But of course taking political risks for the good of the country is kind of like, you know, their fucking jobs.
A good case on the Speech & Debate clause, involving the Pentagon Papers, is Gravel
v. United States. The "Gravel" was Senator Mike Gravel of Alaska. Here's a good quote from the Court on the purpose and scope of the Clause: "Rather, [Gravel's]insistence is that the Speech or Debate Clause, at the very least, protects him from criminal or civil liability and from questioning elsewhere than in the Senate, with respect to the events occurring at the subcommittee hearing at which the Pentagon Papers were introduced into the public record. To us this claim is incontrovertible. The Speech or Debate Clause 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. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process. We have no doubt that Senator Gravel may not be made to answer either in terms of questions or in terms of defending himself from prosecution -- for the events that occurred at the subcommittee meeting."

Now, I think that, given the fact that the Bush administration tried to keep this secret by classifying the material, they and their wingnut proxies are in no position to criticize Rockefeller and Pelosi for abiding by that determination. I, on the other hand, am under no such disability, and I am extremely disappointed that they did not take steps to bring this to light when
they found out about it. Writing a pathetic CYA letter doesn't cut it when our country's very foundational values are at stake.
by Glenn in NYC on Wed Dec 21, 2005 at 03:53:25 PM PDT