The topic of this episode is, “Can Congress access classified information?”

My guest is Daniel Schuman. He is the Policy Director at Demand Progress, a grassroots, nonpartisan organization that has worked to improve the legislative branch and to make government more transparent to the public. Daniel also is the editor of the First Branch Forecast, an extraordinarily informative newsletter that you can read and subscribe to at no cost at https://firstbranchforecast.com/.

We last spoke with Daniel on episode 8 of this podcast, where he enlightened us on the process by which Congress funds itself. This time around, we will dig into the subject of Congress and classified information.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

Daniel, welcome to the podcast.

Daniel Schuman:

Thanks so much for having me.

Kevin Kosar:

I suppose we should start by defining our subject matter: classified information. Pardon the vanity here, but I'm going to refer to a report I wrote some years ago for the Congressional Research Service, where I defined classified information as "information or material designated and clearly marked or clearly represented, pursuant to the provisions of a statute or Executive order (or a regulation or order issued pursuant to a statute or Executive order), as requiring a specific degree of protection against unauthorized disclosure for reasons of national security (50 U.S.C. 426(1))." How's that for clarity?

Now, let's make this a little more clear. Classified information, put really simply, is government information that only certain people in the executive branch can see. Is that roughly correct?

Daniel Schuman:

Yeah, it's roughly right. There are folks inside the legislative and judicial branches who have a right to have access as well. And as your excellent report actually indicated, there're two major ways in which you get classification. One is by statutory authority, which is what we did largely for atomic information. Then there's everything else, which was just sort of made up by the President through executive order. But as a general rule, 99.9%—or something pretty close to that—people with access to classified information are people inside the executive branch.

Kevin Kosar:

Okay, so a listener might be hearing this and saying, “Wait a minute, isn’t this inherently problematic for representative government? We, the people, elect the people who are supposed to make the laws and the people who make the laws are supposed to oversee the executive branch, which executes the laws. But if stuff's classified and the public can't see it and people in Congress generally can't see it, do we lose accountability? What do you think?

Daniel Schuman:

We absolutely do. There're two concepts worth separating. One is whether you have the technical right to see certain information, and the other is whether you actually have the means to see it.

Members of Congress and federal judges do not need to obtain a clearance. Nor does the President for that matter, which sometimes works out to our advantage and sometimes does not. In theory, members of Congress and the Judicial Branch, the executive orders don't apply to them and they should be able to see any information that they need to be able to see. And by extension—at least in theory—so should their staff. In Congress, that would the personal staff, the committee staff, and the support offices and agencies.

But beyond this mechanical problem of do you have or need a clearance, there’s also the issue of, “do you have this need to know?” Members of Congress don't need a clearance because they are constitutional officers, but that is a different question from, “should they be able to see this information?” Sometimes the answer is yes, sometimes the answer is no, but the people who should decide that are the members of Congress themselves. It's the legislative body. They have a fundamental right to oversee the executive branch. The House of Representatives used to be known as the Inquest of the Nation. They do have a right to get answers to all the questions, including things that the executive branch says is classified.

But the executive branch plays games here a little bit. The executive branch is very large; Congressional staff are very small. So they will not necessarily provide them the information. There is a long-standing fight where the executive branch doesn't want to hand over information, so Congress has created special committees that are focused on these matters. But then they play a game with those committees as well—“Well, we'll give it the Intelligence Committee but we won't give it to Armed Services,” or, “We're going to classify it at a different level so your staff can't see it.”

One final point is that while congressional staff—at least as a matter of theory—don't need to have a clearance, as a practical matter, they do. And the people who conduct the clearance reviews are the executive branch, which is not the greatest thing in the world to have happen. Some of these clearances can happen quickly, some can happen slowly.

There's a story that in the 1970s, the executive branch went to Congress and said, “We're going to reduce the number of people in the executive branch with clearances, and you should also have fewer people in Congress.” So the head of the CIA [Stansfield Turner] made a deal with Tip O'Neill and Senate leaders at the time to reduce the number of people with clearances. But they didn't get rid of the number of clearances for people in leadership, of course. They got rid of it for the rank and file. Long story short, the number of clearances in the executive branch went up astronomically, but Congress never changed the way things work for them, so they have great trouble overseeing matters that are happening inside the executive branch.

Kevin Kosar:

From the perspective of representative government, it is a little jarring that Congress has delegated so much control over classified information, controlled information, and all the other different types of information. They've delegated so much of that to the executive branch. We’ve alluded to this, but presidents file these executive orders, which set the rules on how much information gets classified, how long it gets classified for, etc.

Now, who in Congress gets to see classified information on a regular basis? Is it particular committees? Is it any individual who's been elected? Who is it?

Daniel Schuman:

That's a good question.

Again, we have theory and practice. In theory, every member of Congress has a right to see classified matters. But the House and Senate have each adopted rules that compartmentalize this information. So things that relate to the Armed Services Committee, members of the Armed Services Committee—in theory—can see. The committee will also have cleared staff, but now you start getting into principal-agent problems. Committee staff work for the committee chair and not the members of the committee. On the Senate side—in the Senate Intelligence Committee—you have staff designees, so each member of that committee has their own staffer who is hired and fired by them, so they can actually support the members. On the House side, that's not true at all. On the House Intelligence Committee, every member who is on the committee does not have a staffer who works for them, so they’re reliant on committee staff.

There is one exception, which is that the Speaker of the House and the Minority Leader get staff designees because they are ex officio members of the committee. So you have large information asymmetries inside the chamber and then as it relates to outside. Classified information is not just shared inside the United States. We share it with our allies, sometimes we inadvertently share it with our adversaries, but there are many people who are allowed to be in access to classified information.

But Congress is where there's a real rub. Lots of people who should be able to see it, can't see it. They haven't kept up with the way that clearances have changed. A lot of information that used to be classified as secret way back in the day is now classified to being top secret, and we'll have compartmentalization on top of that.

So while interns in the executive branch can often be in access to information that is highly classified, members of Congress and their staff have real difficulty accessing this. And even when they're voting on matters that are highly classified, it's often very difficult for them to get access to that information. And the way access is provisioned, they often don't have staff support to help them understand what it is that they're looking at, which is fundamentally problematic.

Kevin Kosar:

The matter of access—actually being able to see it—brings up a basic question of where do members of Congress get to see it. And I'd be remiss if I didn't mention an infamous moment that occurred during the second Bush presidency where some folks in Congress wanted to get some information on things that were happening in the Middle East post-9/11. And when they spoke to the executive branch and the president's people and said that they wanted to learn about this topic and see the classified information, they were informed that if they wanted to see the information, they had to meet over in an executive branch building. And by the way, you would not be able to bring in a notepad, a pencil, or anything else. The fact that the executive branch is actually physically and digitally where this material rests for the most part means that the people in the executive branch have control—it's in their hands.

So when Congress does get to see this stuff, how do they see it? Are they always stuck going over to the executive branch? Or can they see it somehow in the Capitol or their offices or something else?

Daniel Schuman:

That’s a really good question. It depends on the level of classification and other sort of other things as well.

Materials that are at a low level of classification, you're actually allowed to send it by US Mail. Things that are at low levels of classification, a member can obtain it and they can keep it in a safe—there's a special GSA approved safe where they can keep those matters—then you sign it in and sign it out. That's also how it works in the executive branch, which kind of explains some of the leaks that you see. At higher levels, there are these special rooms called the SCIF, which are basically Faraday cages—they're designed to be impervious to surveillance. There’re armed guards and you go into these rooms and you can look at the documents. Sometimes the person from the executive branch might bring it over and have it chained to them. There’re also a number of classified email systems (e.g., SIPRnet), where—in theory—you can email people, ask questions, and get a response. But while the executive branch's network is widely available throughout the executive branch, in Congress, they limit how many people you can email. So there're all sorts of weird limitations in terms of your ability to reach out and ask people questions. Congress largely gets the short end of the stick.

Your example is a good one, but my favorite example is when [former Senator] Jay Rockefeller was briefed in the early 2000s on the unlawful domestic surveillance program that the Bush administration had stood up, they told him that he couldn't tell anybody else, that he couldn't have staff advise him. So the only memorialization of this is a note that he wrote to himself in pencil along with the file that was kept in wherever they did the briefing that basically says, “I think this is unconstitutional, but I'm not allowed to talk to anyone else, so I'm putting my objection here.” And that was it.

This, of course, leads to another problem, which is, “Okay, the president has told you of this thing. Who else can you tell? Can you tell your fellow members of Congress? Can you release this information to the public? Now that you've got it, what can you do with it?” Members are often not willing to do anything because they're following the advice of the Office of Legal Counsel at the Department of Justice, which reflects the perspectives of the executive branch and not what the law actually is.

So you go through great lengths to get access. You don't always have the context for what you're looking at. You're often told that you can't have staff support or the staff that are supporting you are not your people. Then there're restrictions in terms of what you can do with the information that you've received, which doesn't work well at all in a representative democracy, but that's the system that we have.

Kevin Kosar:

Yeah, the Rockefeller example is a juicy one because if he's hearing something and thinking to himself, this is unconstitutional, as a guy who took an oath upon taking office, part of which is, “I shall uphold the Constitution,” you would seem to have an imperative to speak up.

But setting that aside, there certainly have been incidents where members of Congress have proudly released classified information, not just leaking it on the down-low to media and giving it a little spin to create the narrative they want, but just letting it fly. The example that comes to mind for me was when Alaska's Mike Gravel basically went on the floor of chamber and just put it in the public record. Do you remember that incident?

Daniel Schuman:

I thought it was in his subcommittee. Like, there's video of this, right, where he's like crying as he's reading parts of the Pentagon Papers, I think they were, into the record. Because he thought that that was going to be the end of his career.

Kevin Kosar:

And of course it wasn't. He was not locked up in a cage by the executive branch for releasing this information. Yet so many members do think that the sky will fall upon them if they do this sort of thing in the open.

Daniel Schuman:

It's funny because he found an interesting way to do this. As you know, there's Speech or Debate Clause protection. So if you do things as part of your official duties, you can't be prosecuted elsewhere for it. If you read it into the record, that's fine. In the text of the bill—I'd love to see someone leak classified information in a bill or a resolution, but that has never happened. But in theory, that could be considered an official duty. But if you put in a press release, you're fair game. There is a mechanism for the release of information the executive branch has deemed classified, which is that the House Intelligence Committee or the Senate Intelligence Committee can put forward a resolution that ultimately is passed by the chamber through a very long convoluted process to release information to the public. That's only happened, to my knowledge, only once and it happened in the House. That doesn't declassify the information, so you're still not allowed to look at it if you hold the clearance, but it actually did release the information to the public.

And it's problematic because only the Intel committee can do it. You have to play “Mother, may I?” with the executive branch. You pass a resolution that goes to the White House and they say, “We'd like to release this.” And the White House is like, “You can't release this.” It's like the Passover story, just being denied again and again. So then they pass the resolution, it goes to the chamber, and the White House gets an opportunity to weigh in again. Then they can have a secret debate, in which they can decide whether to release this information.

Just one more point that I find interesting. In the 19th century, the Senate largely operate in closed session for treaties and executive nominations because of the idea that this information should be confidential and so on and so forth. And what happened is that the press would get their hands on draft treaties and draft legislation all the time. Today, Congress largely does not operate in secret on the floor; it will do things in the committees. Many parts of the executive branch operate largely in secret, and we see information released all the time; sometimes officially because the White House views it as useful to them, and sometimes unofficially because you have leakers in the press motivated by good reasons or bad, or because the information is stolen, lost, or has other problems. It's interesting how much of our understanding of the world is shaped by information that the executive branch did not want released, but ultimately was beneficial to our democracy to know what was going on.

Tom Blanton over at the National Security Archives says that there shouldn't be that much information that's classified and what's classified should be highly protected. We live in the opposite situation where there's a lot of information that's classified and the protections for it aren't great. I would just add that our best accountability mechanism, which is the legislative branch, is the one that is more thwarted than anybody else in terms of getting access to this information that they need to do their jobs.

Kevin Kosar:

Yeah, having mentioned, what happens when classified information gets—not formally declassified, but—just released in some way, shape, or form, I feel obligated to mention this little story on the weird situation it creates for the...