The massive NSA surveillance program revealed in June by Edward Snowden may have narrowly survived an up-or-down vote in the House of Representatives last week, but the battle is far from over. As the House Judiciary Committee mulls a second bill limiting NSA telephone intrusions, it's worth revisiting the ground rules governing the ongoing debate. In particular, should members of Congress use their special constitutional powers of free speech to force the facts about the government's secret activities out into the open?
Up until now, Congress has allowed Barack Obama's administration to say one thing in secret sessions and something very different in public. The most notorious instance involved Director of National Intelligence James Clapper, who brazenly denied in a March hearing before the Senate Select Committee on Intelligence that the National Security Agency was collecting data on millions of Americans. Clapper has since apologized to Sen. Ron Wyden (D-Ore.) for lying to his face.
Clapper's confession spurred calls for his resignation. But now that the White House has stood firmly behind the director of national intelligence, the ball is in Congress's court. Clapper, moreover, doesn't seem to have learned his lesson. On Tuesday, Wyden reported that Clapper's response to a more recent inquiry by 26 senators was inadequate. In his view, Clapper minimized the extent to which intelligence agencies have been violating court orders. Wyden claims that these infractions "are significantly more troubling than the government has stated."
Wyden knows what he is talking about. As a member of the Intelligence Committee, he has been briefed on the ins and outs of domestic snooping operations at secret sessions. Given Clapper's continuing evasions, Wyden should no longer content himself with telling us that the administration is misrepresenting the facts. He should instead let Americans know the truth, even at the cost of revealing some classified information presented to him in secret sessions.
The U.S. Constitution guarantees that elected representatives "shall not be questioned in any other Place … for any Speech or Debate in either House." In other words, they cannot be prosecuted for reading classified material into the public record -- and it is up to them, and them alone, to decide what is worth talking about.
This principle has deep roots. During the run-up to the English Civil War, members of the House of Commons were imprisoned in the Tower of London for as long as 11 years between 1629 and 1640. Their offense: insisting on their right to debate central questions of religious freedom, despite King Charles I's claim that these issues lay within his royal prerogative. The freedom of parliamentary debate was therefore an important principle of the Glorious Revolution, leading to its codification in the epochal Bill of Rights of 1689. This provision was the model for the American founders' constitutional text.