WASHINGTON – The consequences of unleashing a 6,300-page report about CIA interrogations post 9-11 could make or break Colorado Sen. Mark Udall’s career. The Democratic senator hasn’t said if he will release details,only that he is interested in doing so. But if he does,he may be protected by the Constitution.
Udall lost his seat in the election to Rep. Cory Gardner,a Republican,who takes office in January.
It’s unclear how Udall would deliver the information from the report,which includes details of each detainee in CIA custody,how they were detained,their conditions and whether accurate intelligence information of their detainment was given to the White House,Congress and the Justice Department.
Udall told the Denver Post “he’s keeping all options on the table.” He has served on the Senate Select Committee on Intelligence,which wrote the report,since 2011.
Revealing the classified information on the Senate floor might be the best way to go,said Brookings Institution Senior Fellow Benjam Wittes. He also co-founded the Lawfare blog,which focuses on national security.
Udall would be protected by Article I Section VI of the Constitution – more commonly known as the Privilege of Speech or Debate clause,which protects federal lawmakers from criminal prosecution while they are on the House or Senate floor.
The section,which refers to senators and representatives,reads: “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.”
Most famously,Alaska Sen. Mike Gravel released the Pentagon Papers through protection of the clause.
Though legal,a release of secret information could have implications for Udall’s career – which could go either way. Udall hasn’t announced his post-Senate plans.
“I think people may understate the consequences of doing it,” Wittes said. “It would be quite a step,and certainly an issue if he wanted to run for office again or take an executive office appointment.”
Udall would most certainly lose his security clearance,Wittes said. People with security clearances are expected to keep classified information secret forever.
On the other hand,Udall doesn’t have much to lose with less than five weeks left in the lame duck session. “Why not exercise his right?” Wittes said.
After Udall leaves office,the leak will be much more difficult to pull off,as he will no longer have immunity.
“I would be surprised if he did it. I think he’s trying to put pressure on the administration,” Wittes said. “It’s a pretty nuclear thing to do,to release a classified document.”
There are other options Udall could take with his time left in office. He could continue to work with the White House and CIA to release the information or Senate Resolution 400 could be invoked. Enacted in 1976,the resolution created a complex method for Congress to declassify secret documents. The committee would have to present the report to a closed-session of the Senate,which could vote to declassify information if the president didn’t object within five days.
The CIA has been under scrutiny by the Senate Select Committee on Intelligence,most recently for redacting information from the report that was set to publish publically.
In April,the White House allowed the CIA to determine which parts of the report should be withheld.
Udall told the Associated Press that Obama “should hold onto the redaction pen himself.”
“He’s been a champion of transparency,” Mike Saccone,director of communications for Udall,said of his boss. “He wants to make sure these grave errors are not repeated again.”
Udall has also advocated scaling back the National Security Agency’s ability to collect phone data from millions of Americans. In 2013,Udall and Sen. Ron Wyden,D-Ore.,said that said NSA methods are intrusive.
It is unlikely that a news organization or journalist would be prosecuted for reporting secret information Udall might present on the Senate floor,according to the Reporters Committee for Freedom of the Press. If he’s entering into the public record,it’s highly unlikely the Justice Department would take action against a media outlet.
Reach reporter Kara Mason at [email protected] or 202-408-1492. SHFWire Stories are free to any news organization that gives the reporter a byline and credits the SHFWire. Like the Scripps Howard Foundation Wire interns on Facebook and follow us on Twitter.