QÜESTIONS D’INCONSTITUCIONALITAT

The two houses of Congress have at times met in secret, albeit not simultaneously, as secret sessions have been more frequent in the Senate than in the House of Representatives. It has been noted that Congress’s secret sessions enjoy “the blessing of the Constitution’s Journal Clause” mentioned above374_{. As far as the House is concerned, the} rate of secret meetings was higher in the early decades of the American Republic. Other than the secret sessions that were held during the War of 1812 against Britain “mainly to receive confidential communications from the President,”375 _{the House convened secret meetings in} 1825 and in 1830. Since then, closed-door sessions have taken place only four times: in 1979, 1980, 1983, and 2008376. On all these occasions, the issues to discuss in secret either fell within the domains of foreign affairs and national security or regarded purely military

372 _{Rule XI(4)(a) of the Rules of the House of Representatives. See infra.}

373 _{Top staff aide to the House subcommittee on broadcasting Donald Wolfensberger noted that the}

demand for TV coverage of floor proceedings came out mainly to offset President Nixon’s unique position at the forefront of the political scene. He stated: “What gave impetus to televising House floor debates was the recognition by the Democratic leadership in early 1970 that President Richard Nixon was dominating the airwaves with defenses of his Vietnam War policies, while congressional opponents were not being given equal access by the networks.” DON WOLFENSBERGER, 20 Years of

House TV: A Bipartisan Reform for a Partisan Era?, Roll Call, March 18, 1999, 6 (quoted in

OLESZECK, Congress and the Internet, supra note 368, ibid.).

374 _R

UDESILL, Coming to Terms with Secret Law, supra note 338, ibid.

375 _D

AVIS, Secret Sessions of the House and Senate, supra note 346, at 3.

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operations377_{. As noted above, senators always gathered in secret until 1794, but the practice} of holding closed-door meetings remained quite an appealing option even subsequently. Executive sessions of the Senate – i.e., the sessions devoted to nominations of Federal Government’s officials and treaties – featured confidentiality until 1929378_{. Data show that} the Senate has held 57 secret sessions since 1929, most of the times to deal with matters of

377 _{In 1979, a secret session of the House took place to discuss the Panama Canal Act. In 1980,}

instead, the House of Representatives deemed it proper to call a secret session to consider Communist countries’ involvement in Nicaragua. The situation in Nicaragua also formed the subject matter of a 1983 secret session, focused on the U.S. engagement in paramilitary operations. Finally, the House held a closed-door session on March 13, 2008, to discuss the Foreign Intelligence Surveillance Act and electronic surveillance in general – a very hot topic at the time. Id., at 5.

378 _{The distinction between legislative and executive sessions as for openness to reporters and the}

public emerged as a compromise that the U.S. Senate reached with state legislatures with respect to the degree of openness of congressional proceedings. Only executive sessions could enjoy the privilege of secrecy for more than a century. Id., at 3 note 12 (referring to the Senate Historian’s Office, http://www.senate.gov/artandhistory/history/minute/Executive_Sessions.htm).

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national security379 _{or foreign affairs}380_{, or to discuss the impeachment of federal judges}381_. Impeachment proceedings against President Clinton led to six secret sessions of the Senate. Furthermore, the Senate practice of holding closed meetings to address international treaties, especially when they involve delicate matters, has not disappeared382.

The two Houses of Congress have separate regulation for secret sessions. Rule XVII, clause 9, of the House of Representatives sets down the conditions on which a secret session may be held: when the House has received confidential communications from the President of the United States or when a Representative acquaints the House with possession of

379 _{On July 14, 1966, for example, a secret session was aimed at considering Senate Resolution 283,}

proposed by Senator William Fulbright, Chairman of the Foreign Relations Committee. The resolution “advocated the creation of a separate Senate Committee on Intelligence Operations to oversee the major intelligence agencies.” FREDERICK M.KAISER, Legislative History of the Senate

Select Committee on Intelligence, CRS Report for Congress (August 16, 1978), p. 4. In 1972, the

Senate tackled a controversy on disclosure of the Pentagon Papers, a study on the U.S. policy towards Vietnam and on the subsequent conduct of the Vietnam War, by holding some closed-door sessions. On the Pentagon Papers affair, see infra. Senator Mike Gravel requested the publication of the memorandum in the Congressional Record. The memorandum, in fact, was no mystery to the American people, as some portions of it had come out in newspapers and magazines. On May 2 and 4, 1972, the Senate held secret sessions to debate the propriety of disclosing the memorandum, which was then still classified. Therefore, as has been observed, the key question the Senate found itself discussing behind closed doors “[was] whether the Senate, without executive branch permission, could declassify documents.” House, Senate Probe Government Classification Policy, in CQ Almanac 1972 (28th ed., Washington, D.C.: Congressional Quarterly, 1973), available at https://library.cqpress.com/cqalmanac/document.php?id=cqal72-1249450. During the May 2 and 4 secret sessions, Gravel’s request was not put to the vote, so the Senate failed to take a final stand. Nevertheless, the Senate, accepting a proposal put forward by Senator Robert C. Byrd, published an edited transcript of the secret sessions in the May 5 Congressional Record. According to Byrd, indeed, “nothing was said during the secret session that revealed sensitive information […].” Ibid. The affair was not over. On his own initiative, Gravel had a broad portion of the Pentagon Papers printed in the May 9 Congressional Record, after reading it on the floor. He received a good deal of criticism for doing so without awaiting the Senate approval.

380 _{On May 15, 1978, for example, there was a Senate closed session aimed at analyzing upsides and}

downsides of selling military aircrafts to Egypt, Israel, and Saudi Arabia.

381 _{For instance, on December 7, 2010, the Senate held a closed-door session to debate the}

impeachment of a federal judge of Louisiana, G. Thomas Porteous, Jr. See DAVIS, Secret Sessions

of the House and Senate, supra note 346, at 3.

382 _{On December 20, 2010, for instance, the Senate opted for a secret session to discuss the ratification}

of New START (Strategic Arms Reduction Treaty; official name – Measures for the Further Reduction and Limitation of Strategic Offensive Arms), a treaty between the United States and Russia on the reduction of nuclear arms. In 1997, instead, a Senate secret session was devoted to the Chemical Weapons Convention Treaty. Ibid.

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communications to be kept confidential. In such cases, once the House has been cleared of all outsiders, the communications may be read, and proceedings may be carried out. As to how to request the closure of proceedings, either a special rule or a specific motion made in the House may entail a secret session. The motion for a secret session may not be debated, “but is subject to the motion to lay on the table”383_{. The Representative who offers the motion} for a secret session is granted one hour of debate after the House resolves into secret session. If the motion is approved by a simple majority, the House is cleared of everyone other than Members of the House, “and those officers and employees specified by the Speaker whose attendance was essential to the functioning of the secret session.”384 _{These employees are} directed to sign an oath of secrecy. The discussion of a motion to disclose the content of the closed session may be allowed, as well, “within narrow limits of relevancy.”385 _{Even if the} motion is rejected, the House may by unanimous consent have the transcripts of the secret session published in the Congressional Record, as edited according to suggestions made by committees. The confidential communications to be read and discussed in secret session may well be in possession of a congressional committee386.

As regards the upper chamber, Rule XXI of the Standing Rules of the Senate lays down the basic regulation of secret sessions387_{. Under Paragraph 1, if another Member of the} Senate seconds a motion for a closed session offered by any Senator, the Presiding Officer is obliged to have the chamber cleared, and direct that the doors remain closed throughout the session. Therefore, it has correctly been observed that the Presiding Officer is granted “no discretion about going into secret session if the motion is made and seconded.”388 _The motion to shield a session from public access, therefore, is debated. Paragraph 2, instead, cross-refers to rules XXIX and XXXI. The former is devoted to executive sessions – i.e.,

383 _{U.S.HOUSE OF REPRESENTATIVES, Constitution, Jefferson’s Manual, and Rules of the House of}

Representatives of the United States One Hundred Fourteenth Congress, H.Doc. 113-181, 113th

Cong., 2nd sess. (Washington, D.C.: Gov’t Publ. Off., 2015), p. 778.

384 _{Id, at 779.} 385 _{Id., at 778.}

386 _{For instance, a secret session that took place in the 96th Congress (1980) was concerned with}

classified information held by two House committees – the Committee on Foreign Affairs and the Permanent Select Committee on Intelligence. They both had specifically authorized usage of the classified material in a secret session of the House of Representatives. Given the existence of that very specific authorization, the Speaker overruled a point of order objecting to the motion of a secret session. Id., at 779.

387 _{Available at http://www.rules.senate.gov/public/index.cfm?p=RulesOfSenateHome.} 388 _D

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sessions aimed at considering executive business, whose scope includes nominations and treaties. Paragraph 2 of Rule XXIX contains the list of persons allowed to remain inside the chamber when the Senate doors are closed for examination of either simply executive or confidential matters. The list is an open one, for the Presiding Officer is empowered to pinpoint discretionally further officers who are permitted to attend a secret session. All officers present at such a session are sworn to secrecy. By approving a specific resolution, however, the Senate may remove the injunction of secrecy389. The order prescribing the removal has to be published in the Congressional Record390. Rule XXIX(5) provides for serious sanctions to impose on those who violate the injunction of secrecy, and specifies that the sanctions also apply to the illegal disclosure of confidential information dealt with in committees and subcommittees. Those sanctions consist in expulsion from the assembly, if the transgressor is a Senator, or in dismissal from service and punishment for contempt, if the violation is committed by either an officer or an employee. Rule XXXI(2) establishes a general rule of openness for the carrying out of Senate business, and requires a majority vote for an executive session – devoted to either a particular nomination or an international treaty – to take place in secret. In such cases, the secrecy of proceedings may be overcome by a majority vote, and each Senator is allowed “[to] make public his vote in closed executive session.” The matter of secret sessions is also addressed in the Rules on Impeachment Trials of the Senate391_{. Rule XX provides that when considering an impeachment trial, the Senate} be supposed to hold open meetings, unless it decides otherwise. A motion for a closed-door session may not be debated. If any Senator objects to it, the motion is immediately put to the vote, and “yeas and nays […] shall be entered on the record.”392