Mark S. Zaid Profile picture
Jan 30, 2018 23 tweets 10 min read Twitter logo Read on Twitter
THREAD - What does #HPSCI release of GOP classified memo mean?

In a partisan vote led by Chairman @DevinNunes, the HPSI voted to release a four page classified memo that details alleged surveillance abuses by @FBI & @TheJusticeDept.…
HPSCI, which along with Senate counterpart (#SSCI), was formed 40 years ago in wake of #ChurchCommittee, #PikeCommittee& #RockefellerCommission, which dealt with a variety of abuses by the Intelligence Community, acted in an unprecedented manner by invoking Rule X, clause 11(f)
(3) That provision actually talks abt preventing disclosure, without consent of each person concerned, of info in possession of HPSCI "that unduly infringes
on the privacy or that violates the constitutional rights of such person."
(4) BUT nothing prevents HPSCI from "publicly disclosing classified information
in a case in which it determines that national interest in the disclosure of classified information clearly outweighs any infringement on the privacy
of a person." This authority continues....
(5) Bc in (g)(1) it notes HPSCI "may disclose publicly any information in its
possession after a determination by the select committee that the public interest
would be served by such disclosure."

What does this all mean?
(6) Notice there is no mention of "declassification" or "declassify". Instead, the language states that it is discussing publicly disclosing "classified information". The balance is not about declassifying but about what might be the public interest.
(7) You can read House Rules:…. Relevant pages are 14-15. Senate has similar, albeit with some significant differences, that can be found here at Section 9.7:…. But then you also need to read S. Res. 400, Sec 8…
(8) In talking to former senior HPSCI officials no one remembered Committee ever going this far. Had been discussion many years ago but never materialized. In fact, knowing Committee origin history I bet those who wrote House/Senate Rules would be very disturbed by today's vote
(9) Under (g)(2)(B) once Committee votes to publicly release classified information they must notify Pres who has 5 days to object. If objecting Pres must personally in writing provide reasons & certify threat to national interest
outweighs any public interest in the disclosure.
(10) House Rules ONLY provide provision for Pres objecting or silence. If no response aft 5 days doc can be released. Presumably Pres can consent before but doubtful this was historically expected. No one, IMHO, foresaw politics to so overshadow intel decisions of this nature
(11) Question is what is the legal status of this memo if it is released? Unless Pres affirmatively declassifies it, which is his authority, I think it remains classified. I don't see legal authority of Congress, based on House Rules, to declassify Exec Branch info.
(12) In 2007, Information Security Oversight Office in @USNatArchives drafted memo for Public Interest Declassification Board & in conclusory sentence on pg 8 insinuates HPSCI action is declassification. But no citation or analysis accompanies claim.…
(13) In #FOIA lawsuits many times my colleagues have argued that Congressional disclosures of classified information, such as in hearings, reports or Congressional Record, constitutes declassification. Federal courts have repeatedly rejected that position bc info is not theirs.
(14) Members of Congress can disclose classified information w/o declassifying it, such as on House/Senate Floor, under Speech & Debate Clause & have immunity from prosecution. Sen. Mike Gravel (R-AK) did just that w/Pentagon Papers in 1971. Supreme Court acknowledged immunity.
(15) What is so astonishing abt today's events is how so much past precedent was thrown out of the window. HPSCI works closely w/Exec agencies for good reason to protect classified info. Yet Committee wouldn't allow DOJ/FBI (save for Dir & one aid yesterday) to even read memo.
(16) Assistant Attorney General Stephen Boyd, a GOP, warned HPSCI last week that releasing memo without giving @TheJusticeDept and @FBI opportunity to review memo “would be extraordinarily reckless,’’ because doing so could harm national security and ongoing investigations.
(17) On @AC360 the former HPSCI Chair Mike Rogers (R-MI) condemned his successor's actions. Obviously Minority was understandably quite upset as seen by Cong. @RepAdamSchiff (D-CA): . Especially bc counter-memo was not allowed to be released. #political
(18) If #Trump is finally persuaded by his own Justice Dept over next 5 days not to release memo, then vote goes to entire House.

I would be surprised if memo would be released at that point but so difficult to politically predict anything nowadays.
(END) If memo is released, then as I told the @latimes I think there is "war" on horizon between agencies of Exec Branch & HPSCI that will harm relations for quite some time.…

Time will tell.
(END - POSTSCRIPT) BTW, if memo release IS equivalent to declassification then #Trump will have undercut his own DOJ in several of our FOIA lawsuits. Meaning, we will be entitled to much more information relating to #SteeleDossier.

So there is an upside if I am wrong 😉
This ISOO interpretation is definitely wrong.
I spoke w/former Dir ("Classification Czar") of Information Security Oversight Office, @USNatArchives, J. William Leonard, who confirmed accuracy of my interpretation #HSPCI action does NOT declassify GOP #FISA Memo. Leonard was ISOO Dir in 2007.

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Would that other entity be you @wikileaks? 🤔…
And if it is Wikileaks, why not finally publicly name them?
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