As I was writing my previous post about the responsibilities of congress when confronted with concrete evidence of executive lawbreaking, I overlooked what must be the single most obvious option members of congress can take. Law Professor Michael Froomkin explains:
All this misses a critical aspect of our constitutional structure. Thanks to the Speech and Debate Clause there was a way for any Senator or Representative who wanted to blow the whistle to do so in a way that involved no risk of jail or fines – at worst they might have lost their security clearances (and even there the law is a little murky).
Article I, section 6 of the Constitution reads as follows,The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
(emphasis added)The Speech and Debate clause has been interpreted to extend beyond floor speeches, e.g. to committee statements, but it unquestionably applies to floor statements. Thus, it would have been possible for Rep. Harman, or Senator Rockefeller, or the others allegedly briefed to go to the floor, either during the times when members may speak on topics of their choice, or under one of the extraordinary mechanism for privileged statements, and denounce the Bush administration’s determinate to torture helpless captives in secret offshore detention facilities.
I'm really at a loss to explain how I didn't think of this. The framers of our constitution deliberately included this clause in order to ensure that the checks and balances functioned effectively. Members of congress cannot be prosecuted for the things they say from the chamber floor. They have absolute legal immunity.
And as Glenn Greenwald points out, there is a very compelling reason why they should have exercised this right to speak up. Rep. Harman claims, for example, that her "second oath" to the intelligence committee prohibited her from doing or saying anything to stop the lawbreaking. Wrong:
Here is the central purpose of the Select Committee on Intelligence -- the primary reason it exists, as stated by the resolution which created the Committee:
It is further the purpose of this resolution to provide vigilant legislative oversight over the intelligence activities of the United States to assure that such activities are in conformity with the Constitution and laws of the United States.The Intelligence Committees were created as a response to the discovery in the 1970s of illegal conduct by the CIA and other intelligence agencies. The core function is to monitor what the intelligence community does and to "assure that such activities" are legal. It is a complete travesty for the senior Democrats on those Committees (and their apologists) to claim that they are powerless to act when learning of lawbreaking. Anyone who thinks that way should not be on the Committee. The idea that they can't do anything once learning of lawbreaking is the very opposite of the Committee's core purpose. But, of course, they were not and are not powerless to act. They simply chose not to act.
In addition to the other mechanisms for action identified here and elsewhere thus far that are available to Senators who learn of patently illegal behavior in a classified setting, key members of the Intelligence Committee could also refuse to cooperate in the enactment of legislation, block nominees, and otherwise thwart the administration's needs until there is some resolution. Such Senators could hold closed door hearings or announce publicly that they have learned of serious lawbreaking by the CIA (without specifying what the lawbreaking is) and demand that the administration agree to a classified setting to resolve those concerns (such as appointing a special counsel with security clearances or empowering a court able to investigate and adjudicate highly classified matters).
But they did none of that. They did the opposite: they continued to cooperate meekly with the administration, pass all of their demanded legislation, and keep quiet. Even for those who say that it's terribly unfair to expect our political leaders to subject themselves to any risk whatsoever in order to put a stop to such gross abuses, they could have acted in ways far short of some sort of melodramatic civil disobedience which would have risked imprisonment (i.e, they would not have had to go as far as actual leaders and patriots who did take risks in order to expose serious governmental wrongdoing).
If someone wants to defend these Democrats' complicit behavior (on the craven ground that what they did was understandable because it was politically wise), then they should make that argument. But nobody should pretend that these Senators and Representatives were "helpless" and had no options for putting a stop to Bush's torture programs and other lawbreaking if they were actually interested in doing so.
To accept the arguments of Harman and Rockefeller, you must by definition accept that congressional oversight of intelligence is meaningless. Under their interpretation of their roles, they exist only to silently receive information. That's just nonsensical.
Lead or get out of the way. Those are your options.
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