PORTLAND, Ore. – In 1976 the U.S. Senate gave itself the power to disclose classified information it deemed to be in the public interest, even over the objections of the president of the United States.
During the 12 years U.S. Sen. Ron Wyden, D-Ore., has sat on the Senate Select Committee on Intelligence, senators on the committee have initiated that power "on exactly one occasion," Wyden's office confirmed through an emailed statement last Friday.
That occasion surrounded a now-declassified document summarizing the George W. Bush administration's legal arguments for allowing the CIA to use interrogation techniques – what many would describe as torture – on suspected terrorists.
Even though the process was initiated, in the end, the document, according to Wyden's office, was declassified without using the disclosure provision the Senate created for itself, which is embedded in a resolution that formed the committee in 1976. That resolution is known as Senate Resolution 400 (S. Res. 400).
The document was "eventually released following the more standard process of the executive branch agreeing that it could be declassified," Wyden's office said in a statement. The person leading the executive branch at the time of declassification was not President George W. Bush, but his successor, President Barack Obama.
Senate maintains oversight over intelligence operations
The Senate created its permanent intelligence committee May 19, 1976, following the disclosure of abuses by the FBI, CIA and other agencies. Those abuses included opening the mail of American citizens, plots to assassinate foreign leaders and illegal electronic surveillance.
After much debate and consideration, the Senate set forth in S. Res. 400, the following power:
"The Select Committee may, subject to the provisions of this section, disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such disclosure."
The Senate, however, did not make the process easy with those "provisions" it created for itself. If the committee wants to declassify particular information, the resolution requires, among other things, the committee notify the president of the United States of its intentions. If the president objects to the declassification of the information in writing within five days, the committee then must get approval from the full Senate.
In an interview Friday afternoon in Portland, Wyden declined to describe the behind-the-scene efforts the committee used while invoking the disclosure provision to force the executive branch to declassify the legal reasoning for the CIA's detention and interrogation program. The committee's internal debates are secret.
According to Wyden's office, the disclosure provision is "generally seen as a backup option – members of the committee usually attempt to negotiate agreements with the executive branch about what will be declassified and what won't, without relying on the S. Res. 400 procedures."
Wyden, in the interview, said that the disclosure provision is one of many tools available to get classified information in the public interest declassified.
"(The disclosure provision) is one route. I think that there are a variety of routes (that can be taken)," he said. "So I think it's one tool. I wouldn't say it's the only tool."
The Senate Select Committee on Intelligence is currently working to declassify the committee's 6,000-page enhanced interrogation report further detailing the CIA's use of torture and the role that private contractors played in the program. Wyden has said he hopes that it will be declassified soon.
In its written statement to KATU.com, Wyden's office floated the committee's disclosure provision as an option to getting the report declassified.
"As of now, the committee has not made a decision to use the S. Res. 400 process to accomplish this, though that is certainly one option," Wyden's office said.
Wyden has worked for years to get presidential administrations to be more open with him, the intelligence committee and the public. And he has described that process as nonlinear.
"What is the challenge about these discussions is that, particularly oversight and the intelligence field is ... you don't just have a hearing and someone shows up and offers a bill and offers an amendment," he told Oregon reporters during a telephone conference shortly after Edward Snowden leaked classified information about the National Security Agency's bulk collection of Americans' telephone records.
He gave the reporters two examples he said "where I believed we've been able to produce significant accomplishments in six months and neither, I think, were kind of textbook with respect to how the Congress works."
For example, the intelligence committee was able to finally receive the classified legal opinions the Obama administration used to justify a drone strike that killed an American citizen in Yemen suspected of terrorism. Wyden threatened to hold up the nomination of John Brennan as the head of the CIA if the committee didn't get those legal documents.
The second example, he said, was in regards to the so-called Anti-Leaks bill that he said would have significantly rolled back the public's right to know because it would have harshly punished whistleblowers without due process.
He put a public hold on the bill until the overly broad language was stripped from it, he said.
A third example arose last summer when it was disclosed that the NSA had collected tens of thousands of Americans’ emails and that the Foreign Intelligence Surveillance Court ruled that the collection was unconstitutional and ordered the NSA to fix the problem.
Wyden, during a City Club of Portland meeting in late August, credited his intelligence aide, John Dickas, for leading the charge to get that court ruling and opinion declassified.
"He saw that there was a classified ruling from the FISA court, making it clear that not only had the spirit of the FISA law been violated, but there has been a violation of the Fourth Amendment," Wyden said.
That information helped lead the Electronic Frontier Foundation to file a lawsuit which helped spur the government to declassify the information.
KATU.com reporting on Wyden's transparency efforts:
- Drones, secret law and Wyden's push for transparency
- Wyden demands targeted killing legal opinions from CIA nominee (John Brennan)
- Wyden, senators ask president to release targeted killing memos
- Wyden supports Obama CIA pick after drone-kill docs supplied
- Wyden's standard: Secret programs must provide 'unique value'
- Wyden to soon re-engage administration on targeted killing program