By Robert Willmann
On Monday, 29 January 2018, the U.S. House of Representatives Permanent Select Committee on Intelligence met for a business meeting and voted on five agenda items or motions concerning classified executive session memoranda. This is the tantalizing matter of conduct by one or more executive branch agencies of surveillance, perhaps of president-elect Donald Trump, campaign members, and others. Also said to possibly be involved is the secret federal court created by the Foreign Intelligence Surveillance Act (FISA), and maybe even the bawdy paper pushed during the presidential campaign by "former" (or current?) British MI6 agent Christopher Steele about Donald Trump and Russia. Here are the agenda items and the votes on each one by committee members–
The big one was item number four, which passed, and authorized the disclosure of one classified executive session memo.
Of equal interest is the fact that the U.S. Congress can declassify and make public a document or item that was deemed secret and not to be disclosed. Buried in the 45 pages of fine print in the Rules of the House of Representatives is the language that is claimed to authorize the disclosure. Rule 10 governs the organization of committees. Section or clause 11 of Rule 10 deals with the Permanent Select Committee on Intelligence. The good stuff describing the authority and procedure is on pdf pages 19 and 20 (document pages 15 and 16) of the rules, in parts 11(f) and 11(g). You start near the bottom of the middle column with part "f" on pdf page 19 and go through part/clause 11(g)(2)(G) in the first column on pdf page 20–
That Congress can decide what is classified secret and what is not, and can authorize disclosure, is self-evident from Article 1, section 1 of the U.S. Constitution: "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives". However, the House rules are not legislation. I have not yet tried to find a law passed by Congress that creates this unilateral power to declassify material, but I assume that it does exist, or it certainly should.
The members of the House intelligence committee are listed here–
One little item of interest is that committee member Will Hurd (Repub. Texas, 23rd District) is a former CIA officer. His Congressional district includes part of the San Antonio area. According to the committee document cited above with the motions that were voted on, he participated in all of the votes except number four, the one that starts the process to try to disclose the memo to the public. He did not vote "present", so he may have ducked out of the room for that one. If he has a philosophical objection to disclosing material previously designated as classified, he may not be put on the spot as the deciding vote to disclose if the whole House has to vote on that question. If the Republicans have a surplus in their majority in the House, he might either not vote at all or make a symbolic "no" vote.
If the underlying material for the memo was submitted by the "executive branch" and the executive branch requests that it be kept secret, the committee notifies the president that the vote to disclose was made.
The committee itself can disclose the memo five days after it tells the president that it took a positive vote. The day of notice was probably yesterday. If so, the fifth day is Saturday, 3 February.
The memo could be released on 4 February, just in time for the Sunday morning talk shows, if the president does not notify the select committee personally in writing "that the President objects to the disclosure of such information, provides reasons therefor, and certifies that the threat to the national interest of the United States posed by the disclosure is of such gravity that it outweighs any public interest in the disclosure".
The operative phrase is "national interest" and not "national security".
If the president objects to disclosure, the whole House has to vote positively to reveal the memo.
A person would do well to be cautious about how powerful the memo is, because all the buildup about it is like a striptease dancer in a burlesque show. The memo itself appears not to be the evidence from which it is derived. The Democrats in the House have produced their own memo allegedly based on the same material, and it most certainly says the opposite. The Democrats will then claim that the public cannot see the evidence on which it is based and draw its own conclusions, because that evidence has to remain "classified".
In addition, the memo and its hype should not provide misdirection from all possible problems associated with the issue of surveillance, investigations, and politics. Look at this shiny object: the memo! the FISA court! the FBI application! the Christopher Steele paper! the Justice Department maneuvers!
The problems involved are serious soap. This is not just the Department That Calls Itself Justice, the FBI, and a lurid paper from Christopher Steele likely used to get a surveillance warrant from the FISA court. Surveillance, wiretapping, and other clandestine activities may have been done illegally by other government agencies or private persons or organizations, or done by foreign governments such as Britain or Israel, and then handed off to the CIA, FBI, or other persons or organizations to be used politically within the U.S.
Perhaps the cellular phones that are hand-held computers the candidates and their associates were happily using were illegally being activated as tracking and listening devices. No bugs need be planted.
You can see how difficult it is to try to have a memo declassified without even getting into revealing the claimed evidence underlying it. The bad actors in this drama hide behind forms of governmental immunity and the concept of classified information, while continuing to be paid by the taxpayers.
But in the face of that, we withdraw permission to be defeated, and take one step at a time.