That House Intelligence Memo

January 30, 2018–Wondering how the House Permanent Select Committee on Intelligence (HPSCI) can unilaterally vote to release a classified document? Only time for a short entry today but I can answer that question. –And much as folks deplore the “bad old days” of the 1970s, that’s precisely where the answer lies. In 1975 there were committees in both houses of Congress investigating the activities of United States intelligence. The one in the House was led by New York Democrat Otis Pike. His committee uncovered some embarrassing information about a then-recent crisis in Cyprus, where a U.S. diplomat had used what was called the “dissent” channel to object to how Washington–read secretary of state Henry Kissinger–had behaved in the event. The Pike committee also had a lead on certain information about the October War that showed the United States had known of key Egyptian war preparations but done nothing with the knowledge–another blot on Kissinger’s copybook.

The Pike Committee decided it would release this information to the public. President Gerald R. Ford, pushed by his staff (including Dick Cheney) resisted. The Justice Department threatened the committee. The intelligence agencies stopped supplying documents to the committee. Pike’s counter-threat was to subpoena the information. Inside government, Kissinger advised Ford to resist handing anything over, even if it meant a court case going to the Supremes. But both White House and CIA lawyers warned that the courts would find (1) Congress had an unquestioned right to investigate; (2) laws assured its access to any information necessary for an investigation, (3) that the Pike Committee was a duly constituted entity of the Congress, and (4) That having a Court decision establishing this precedent on the books, and enforcing subpoenae against the intelligence agencies, was something the president did not want. The Ford White House caved, resuming the supply of material to the Pike staff under the pretext the documents were being “loaned.”

Ironically it later developed that Henry Kissinger had leaked information on both the matters he sought to keep from the Pike Committee.

After this experience the Pike Committee recommended language for an oversight committee which might succeed it–the HPSCI–for the committee to unilaterally release a secret document. Lawyer Burt Wides takes credit for the provision. The Senate, whose Church Committee had conducted its own investigation and had had trouble with the executive on releasing a report on CIA assassination plotting, included a similar provision in the bylaws for the Senate Select Committee on Intelligence.

These are not obscure or arcane provisions, as some newspapers are saying right now. Not long ago the Senate intelligence committee acquiesced in putting its investigative report on torture through a conventional declassification process instead of using the unilateral release mechanism. Read more about that in my book The Ghosts of Langley: Into the CIA’s Heart of DarknessThat was a concession to bipartisan practice. In today’s controversy over the HPSCI unilaterally releasing a Republican memo accusing the FBI we have the HPSCI exploiting the secrets release rule for a political purpose. You can read a detailed analysis of the Pike Committee’s secrecy crisis, including the relevant documents, in the National Security Archive Electronic Briefing Book no. 596, from June 2017.

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