Lecturer-in-Law Scott Horton Testifies Before Senate Subcommittee on Crime and Terrorism

Columbia Law School Adjunct Professor Scott Horton testified on the topic of the Constitution’s Debate Clause in a United States Senate Committee on the Judiciary hearing on Capitol Hill today. The hearing focused on a pending Department of Justice inquiry based on a criminal referral made by the CIA, which argued that staffers of the Senate Select Committee on Intelligence had violated federal law by retrieving classified documents from a server the agency had set up for the Senate committee’s use.

 

The subject was covered in Horton’s recent book, Lords of Secrecy: The National Security Elite and America’s Stealth Warfare, which discusses more broadly “the role played by secrecy in diminishing democratic process surrounding national security decision-making in the United States.” He is also a legal affairs and national security contributor to Harper’s Magazine.

 

Government secrecy in relation to the Debate Clause was a focal point of Horton’s Dec. 6 testimony before the Subcommittee on Crime and Terrorism. He notes that potential conflicts can occur with the Clause—which is meant to prevent the President or other executive branch officials from arresting or prosecuting members of Congress because of their political views—when it comes to issues of classified materials.

 

“Secrecy is a particularly difficult and also ancient field of contention between the Legislative and Executive branches that tends frequently to implicate the Debate Clause,” Horton said. “The criminal law was generally available to help safeguard secrets, and violation of secrets could even be labeled an act of treason or espionage, with the most severe penalties. The Debate Clause has consistently been used as a shield against such claims by the Executive, however—at least when the penetration of secrets was seen as a legitimate part of the Legislature’s conduct.”

 

Horton proposes three adjustments to ensure “proper implementation” of Debate Clause privileges: revise the 1995 MOU on referrals, codify an affirmative defense based on the Debate Clause, and fix a statute of limitations of six months for offenses.

 

“The Debate Clause was never intended to furnish complete immunity from accountability for wrongful or unlawful conduct—only immunity from accountability by the Executive…It may be argued that access to classified information and the survival of the Debate Clause privileges themselves depend on Congress taking the point of self-policing seriously. This is equally the case for members and staff.”

 

“But if staffers get caught in the legal and political crossfire between the Executive and the Legislative branches over secrecy issues, the essential relationship of confidence between staff and the members they serve will inevitably be undermined,” Horton continued. “This helps us understand why the Debate Clause protections have consistently been extended to congressional staff, provided that they are acting under the supervision of a member and their conduct is within the scope of appropriate congressional activities. “

 

Horton’s testimony drew on two articles written by fellow Columbia Law School Professor David Pozen.

 

Also testifying at the hearing Tuesday were Jeff Smith, former general counsel of the CIA, and Bill Pittard, former acting general counsel to the House of Representatives, both based in Washington, D.C.

 

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