home Congress, national security Removing Classified Material from a Secure Facility, Even by Congressional Staff, is Illegal

Removing Classified Material from a Secure Facility, Even by Congressional Staff, is Illegal

I have received inquires from folks in town, mostly from Capitol Hill, about my repeated posts about Senate staff removing classified records from a secure facility on the enhanced interrogation matter. At the CIA General Counsel’s prompting, the Justice Department and the FBI are investigating how Senate staff managed to illegally remove classified documents (and used them on background with certain media outlets and public interest groups who oppose the global war against radical Islam).

One fellow, a recent arrival to this town, curiously asked: ‘What’s the big deal if this really happened? That’s what staff is for, we take the arrows for the Member.’ Lucky for him, he’s not associated at all with this issue; however, his somewhat flippant comment is not that unusual these days in certain pockets of the Hill.

Of all the political brouhaha surrounding the release of a summary of the interrogation memos (information that should remain classified beyond our mortal “sell by” dates), this small but serious incident can damage long-term oversight processes. Conducting oversight by breaking the law sets a bad precedent. Just because they can do it, does not make it right.

Unlike other Congressional Committees, the Senate and House intelligence oversight committees operate under rules – written and unwritten – that limit Member as well as Staff access to certain information. It is a unique relationship that has undergone peaks and valleys since the creation of the Committees in the mid-1970s. It will always be adversarial, even with trust. When Members of Congress and Staff break the law to do their job, it shakes the confidence of the entire process.

Members of Congress have been removed or asked to leave SSCI and HPSCI for leaking or unlawfully removing classified information. For example, when he seres in the Senate, the current Vice President threatened the Reagan Administration with leaking what he called “hair brained” information about Nicaragua and the Contras, but never did. That honor goes to Sen. Patrick Leahy (D-Vt.) who voluntarily left the Senate intelligence committee in 1987 after leaking a classified draft report to the media on the Iran-Contra matter. Leahy was SSCI Vice-Chair. This case illustrates how far certain Members, and the staff that support them, will go to make a political point even if at the expense of the greater good.

There was at least one other departure on the House side involving the release of satellite photos. It involved a California Representative that stepped down from HPSCI. While not on SSCI and HPSCI, I know former Congressional staffer who served in the Obama Administration’s National Security Council, who was fired from a national security Congressional committee for doing similar acts, albeit at a much smaller scale. There have been similar and unreported incidents involving staff removing classified information from secure locations. Most of the time, they are asked to quietly leave the Hill.

Why do certain folks on the Hill feel compelled to leak or otherwise break the law to conduct oversight? A lot of reasons, but in this case it may be a combination of inter-agency in-fighting (maybe fueled by former IC personnel currently working on the Hill; an issue for a later post) as well as a legitimate Congressional turf war with the agencies about who knew what and when. During the early phases of the enhanced interrogation investigations, it may just have been a political vendetta by the Left wing of the Democratic Party against the Bush Administration. Whatever the case is, illegally removing materials from a secure facility is illegal. Any other American caught doing this would likely end up in prison.

No one Capitol Hill is above the law, even if they act sometimes as if they are. If the oversight process is to work in the national security arena, trust is a key component. Removing and/or sharing information in this arena in an unlawful manner can result in very bad consequences, not the least of which is getting people killed.

While this should have been resolved without a referral to the Justice Department, it is possible counsel was given no other option by Congressional overseers. If that is the case, then relations between the branches are in need of much repair.

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