A number of the best internet commentators are discussing today’s news that a few of the leading Congressional Democrats may have been – probably were – briefed about the administration’s plans to torture (waterboard, and maybe more) suspected terrorists being held in secret CIA facilities abroad. There’s confusion about the facts, with few of the people allegedly briefed confirming the story. Notably, however, it appears that of those briefed, only Rep. Jane Harman objected. (Note that we’re still at an early spin stage here — more facts about who said what to whom are likely to come out.)

The emerging consensus in the blogosphere seems to be that even if they had the presence of mind to object, the Representatives and Senators who were briefed were in a bind: as members of the Intelligence Committees or the leadership, they signed various secrecy pledges which stopped them from going public. To go public, it seems to be agreed, was to “jeopardize their careers and risk jail” as Kevin Drum put it; even so, Matthew Yglesias suggests that this called for civil disobedience, and that the representatives should have dared the administration to arrest them.

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 not saying this would be easy or politically painless. The political risks are obvious – and recall the Congress was being briefed not all that long after 9/11. But even without the national security angle or the political frenzy angle, there were also counterveilling issues of fundamental personal ethics As Rep. Harman noted,

“When you serve on intelligence committee you sign a second oath — one of secrecy,” she said. “I was briefed, but the information was closely held to just the Gang of Four. I was not free to disclose anything.”

Serious people take oaths like this seriously and are right to do so; but before they took that second oath, they took a first one upon taking office in which they promised to “preserve and defend the Constitution of the United States.” To the extent that the second oath allows the executive to muzzle members of Congress, it is unconstitutional under any theory, including not only the Speech and Debate clause, but also the Incompatibility Clause (which forbids members of congress from serving in the executive branch; a converse conclusion is that this clause forbids the executive branch from turning members of Congress into subordinates).

Although apparently too easily forgotten, the Speech and Debate Clause is, as Justice Harlan said in United States v. Johnson, 383 U.S. 169, 178 (1966),

the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators. Since the Glorious Revolution in Britain, and throughout United States history, the privilege has been recognized as an important protection of the independence and integrity of the legislature.

The Supreme Court has limited the reach of the Speech and Debate Clause in some relevant respects. In Doe v. McMillan, 412 U.S. 306 (1973), the Court distinguished statements on the floor (or in committee) – which are and remain completely privileged – and their republication elsewhere. In that case a committee print of one of its reports, issued in a routine manner by the Public Printer, contained allegedly defamatory statements about private citizens. They sued for an injunction to prevent further publication, dissemination, and distribution of the report until the objectionable material was deleted, and sought damages. The Court held that the Members of Congress and their staffs could not be sued due to the Speech and Debate Clause, since their actions had all been part of the ordinary legislative process. But the Court also held the Superintendent of Documents and the Public Printer could be sued because they had no broader immunity than Members of Congress would have and their actions in publically disseminating the report outside Congress were not legislative acts, unlike voting, speaking on the floor or in committee, which are protected.

More troubling for third parties, however, is Gravel v. United States, 408 U.S. 606 (1972). Senator Gravel read key parts of the Pentagon Papers at a committee hearing, and then placed the full text of the 47 volumes of it into the public record. That act, the Supreme Court held, was privileged, an argument it called “incontrovertible.” But the Court refused to assume that once the material was in the public record it automatically followed that arrangements to republish them were inevitably legal, nor did at accept that Senator Gravel’s attempts to find a publisher (or his aide’s, which they took to be the same thing for these purposes), fell under the Speech and Debate Clause.

Combine this holding with the administration’s more recent and aggressive re-interpretations of the Espionage Act, which seek to extend it to reach the conduct of parties not holding clearances who share information that they acquire from someone who has one, and you begin to wonder whether newspapers that republished the floor speech might not face some legal attacks from the Justice Department. Although I personally think that the First Amendment must protect a newspaper that republishes a member of Congress’s statements on the floor, it is clear that the current administration has taken positions that would allow it to argue the contrary; more to the point, although I think the newspapers would win such a case, even the main Pentagon Papers case, much less the Gravel case noted above, don’t conclusively foreclose the government from arguing the contrary.

The question of security clearances is the murkiest part of the story. The Bush administration has consistently taken the extreme position that it never has any legal duty to tell Congress anything. It claims the power to ignore subpoenas. It says that the President is the only judge of what he has to do, and any attempt to compel him is unconstitutional. As early as 2001 the administration unilaterally revoked the security clearances of 91 Senators, arguing as GW Bush put it “it’s not in the nation’s interest” that they have access to information they could leak.

I believe that Congress could Constitutionally legislate to preserve the security clearances of members who disclose classified information on the floor. As far as I know (please correct me if I’m wrong), Congress has never passed such a rule, and in its absence, I think it is within the power of the executive to choose to deny clearances to whistle blowing members of Congress. That is a forward-looking loss of privilege rather than a legal disability of the sort that the Speech and Debate Clause protects against. But legally, that’s it. A member of Congress who learned of torture plans and chose to tell the nation about them would face no other legitimate legal risk; (there was, with the Gonzales gang, the not inconsiderable possibility of an improper prosecution, but many of the key events here were when Ashcroft was Attorney General) .

It would have taken great courage, and carried political risk, but our Constitution does provide a channel by which members of Congress can stand up and call the executive to account on its plans to torture someone in a secret CIA prison. At the end of the day it was that courage, not the legal avenue to expose wrongdoing, which was in too short supply in Congress.

(I’ve written the above in something of a hurry and think of it as a very preliminary attempt to explain the role of the Speech and Debate clause. I welcome correction and amplification from those who may know more than I; I would be particularly grateful for any insights regarding the granting and withholding of security clearances for members of Congress, a subject I am sure I have much to learn about.)