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[Edit: It seems I was misreading this. See child comments for more details, or just ignore this comment. Sorry for the confusion.] I don't think they could. I'

by rtb 13y ago

[Edit: It seems I was misreading this. See child comments for more details, or just ignore this comment. Sorry for the confusion.] I don't think they could. I'm no constitutional lawyer (I'm not even American), but someone pointed out on here recently that the clause says "[they] shall in all Cases, except Treason, Felony, and Breach of the Peace [have immunity] for any Speech or Debate in either House" ... and since discussing classified secrets would count as a felony (possibly even Treason, given some of the opinions about this story), they could be prosecuted. Is that incorrect? In the UK, MPs could discuss state secrets in Parliament and be protected under Parliamentary Privilege, but not so in the USA, as I understand it.

nknighthb 13y ago
That's... wildly incorrect. It's not even a tortured reading, it's a "we made it up" reading. The actual text is: They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. The Speech or Debate clause has never been doubted to extend to anything a member may say on the floor of their house.
- rtb 13y ago
  I don't follow. Are you saying that I changed the meaning by my choice of ellipsis? How so? I didn't intend to, sorry. It says "except Felony". Releasing classified secrets is a felony. So it sounds like it means that a Senator who released classified secrets during a speech in the house would not be immune from prosecution for doing so. Is that not how it has been interpreted? Do you have any examples? Would a Senator be safe in discussing the classified details in the House? I notice that all have chosen not to. Would you say that's due to public pressure rather than the threat of prosecution, then?
  - Svip 13y ago
    Read the Speech and Debate clause. It says that whatever they say in either House shall not be questioned in any other Place. That is to say; they cannot be prosecuted for anything they say in either House. The other part (the first part) of the statement merely states that they shall not be arrested while in either House (or going to and from either), unless their arrest is for Treason, Felony and Breach of the Peace.
  - nknighthb 13y ago
    You're failing to recognize the semicolon. "and for any Speech or Debate in either House, they shall not be questioned in any other Place" is a separate clause from the first part of the sentence, not a clarification of the scope. Gravel v. United States[1], a Supreme Court case from the 1970s related to Senator Mike Gravel reading the Pentagon Papers (classified material) into the Senate record, established this clearly: "Rather, his insistence is that the Speech or Debate Clause at the very least protects him from criminal or civil liability and from questioning elsewhere than in the Senate, with respect to the events occurring at the subcommittee hearing at which the Pentagon Papers were introduced into the public record. To us this claim is incontrovertible. [...] We have no doubt that Senator Gravel may not be made to answer —either in terms of questions or in terms of defending himself from prosecution—for the events that occurred at the subcommittee meeting." With regard to this: > Would a Senator be safe in discussing the classified details in the House? "House of Congress" and "House of Representatives" are two different things. "the House" generally refers to the latter. "Their House" refers to the House of Congress the member actually belongs to. The clause is at least ambiguous on the question of whether a Senator has immunity in the House of Representatives, and whether a Representative has immunity in the Senate, but in this case it's unimportant. My hope is that a Senator will walk on to the floor of the Senate, or a Representative will walk on to the floor of the House of Representatives. [1]http://scholar.google.com/scholar_case?case=2739100783028836019&hl=en&as_sdt=2&as_vis=1&oi=scholarr http://scholar.google.com/scholar_case?case=2739100783028836...
    - rtb 13y ago
      Thanks. I was reading the semicolon as a list separator (like a comma), not a sentence separator (like a full stop / period). The use of a lower-case "and" after the semi-colon pushed me in that direction. It looks pretty conclusively like I was wrong. I have updated my comment. +1 from me for a senator to disclose the government's lies, then, so there can be an informed debate about the costs and benefits of mass surveillance.
  - pzb 13y ago
    It helps to turns the language around and split it up: "They shall be privileged from Arrest during their Attendance at the Session of their respective Houses in all Cases, except Treason, Felony and Breach of the Peace. [They shall be privileged from Arrest] in going to and returning from the [the Session of their respective Houses in all Cases, except Treason, Felony and Breach of the Peace]. For any Speech or Debate in either House, they shall not be questioned in any other Place." Any Senator disclosing classified details would be violating Senate rules which would then place him or her subject to action by the Senate itself.
    - nknighthb 13y ago
      > Any Senator disclosing classified details would be violating Senate rules which would then place him or her subject to action by the Senate itself. There's only so much they can do, aside from blocking further access to classified information through official channels and stripping committee assignments. Expelling requires a 2/3rds majority, which I doubt they'd get, and Powell v. McCormack established that Congress can't prevent the initial seating of a duly elected, constitutionally qualified member.
  - michaelt 13y ago
    The most common use of the semicolon is to join together two related clauses that could each be separate sentences, so the "; and" is interpreted like the start of a new sentence. That is: They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same. For any Speech or Debate in either House, they shall not be questioned in any other Place.
mtgx 13y ago
If Snowden isn't charged with treason, then I doubt a US senator will be charged with that. I think if they did the outrage and Wyden's support would be even bigger than it is for the "random NSA analyst" Snowden. I for one hope he will be running for president soon.
- Shivetya 13y ago
  Treason is defined by the Constitution and it is explicitly stated that Congress cannot modify its meaning. To whom that we are at war with has he helped? I supposed if he gave the information to the Taliban, but I doubt that would suffice. Text taken from Wikipedia article Article III, Section 3. This part of the Constitution strips Congress of the Parliamentary power of changing or modifying the law of treason by simple majority statute. It's not enough merely to think treasonously; there must be an overt act of making war or materially helping those at war with the United States. Accusations must be corroborated by at least two witnesses. Congress is a political body and political disagreements routinely encountered should never be considered as treason. This allows for nonviolent resistance to the government because opposition is not a life or death proposition. However, Congress does provide for other less subversive crimes and punishments such as conspiracy.[g]
  - CWuestefeld 13y ago
    To whom that we are at war with has he helped? That's an easy question: nobody. We're not at war with anyone. The Congress thinks it's found an easy way around the ugliness of a formal declaration of war (e.g., the AUMF). But here's a wrinkle. If we haven't declared war, then we're clearly not at war in a legal sense. And thus, it can't trigger the treason definition.
    - rayiner 13y ago
      Nothing about "being at war" requires a "formal declaration of war." Not in the Constitution, nor by statute, nor at common law. See: http://en.wikipedia.org/wiki/Declaration_of_war_by_the_United_States http://en.wikipedia.org/wiki/Declaration_of_war_by_the_Unite....
lifeisstillgood 13y ago
Even so, an MP who stood up in a time of war and in public gave information that could "be of benefit to our enemies" would still face prosecution for Treason. And that's kind of the point.
- 3825 13y ago
  Which war? The war in Afghanistan?
  - lifeisstillgood 13y ago
    As no war has been officially declared since 1945, and we still have treason and traitors, I suspect you could use the War on Drugs as an excuse if you tried hard
    - deleted 13y ago
      [deleted]
michaelt 13y ago
The (classified) Pentagon Papers [1] were read into the congressional record without Mike Gravel being successfully prosecuted. I assume as the exclusion for Treason, Felony and Breach of the Peace is before the semicolon, it doesn't apply to the "they shall not be questioned in any other Place" after the semicolon. [1] https://en.wikipedia.org/wiki/Pentagon_Papers#Leak https://en.wikipedia.org/wiki/Pentagon_Papers#Leak
- sharth 13y ago
  And the question in the lawsuit had nothing to do with concern about Sen. Gravel's immunity, the concern was about immunity for his staffers.
danenania 13y ago
I think a credible argument can be made that disclosing activity which directly and obviously contravenes the constitution is not treason. I'd say the builders and enablers of an international secret totalitarian surveillance system are the ones guilty of treason. They are the traitors who should be on trial.
- aqme28 13y ago
  Well it's definitely not treason, but that's because our constitution defines treason in very narrow terms (which I think is good).

by rtb 13y ago

nknighthb 13y ago

That's... wildly incorrect. It's not even a tortured reading, it's a "we made it up" reading. The actual text is: They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. The Speech or Debate clause has never been doubted to extend to anything a member may say on the floor of their house.

rtb 13y ago
I don't follow. Are you saying that I changed the meaning by my choice of ellipsis? How so? I didn't intend to, sorry. It says "except Felony". Releasing classified secrets is a felony. So it sounds like it means that a Senator who released classified secrets during a speech in the house would not be immune from prosecution for doing so. Is that not how it has been interpreted? Do you have any examples? Would a Senator be safe in discussing the classified details in the House? I notice that all have chosen not to. Would you say that's due to public pressure rather than the threat of prosecution, then?
- Svip 13y ago
  Read the Speech and Debate clause. It says that whatever they say in either House shall not be questioned in any other Place. That is to say; they cannot be prosecuted for anything they say in either House. The other part (the first part) of the statement merely states that they shall not be arrested while in either House (or going to and from either), unless their arrest is for Treason, Felony and Breach of the Peace.
- nknighthb 13y ago
  You're failing to recognize the semicolon. "and for any Speech or Debate in either House, they shall not be questioned in any other Place" is a separate clause from the first part of the sentence, not a clarification of the scope. Gravel v. United States[1], a Supreme Court case from the 1970s related to Senator Mike Gravel reading the Pentagon Papers (classified material) into the Senate record, established this clearly: "Rather, his insistence is that the Speech or Debate Clause at the very least protects him from criminal or civil liability and from questioning elsewhere than in the Senate, with respect to the events occurring at the subcommittee hearing at which the Pentagon Papers were introduced into the public record. To us this claim is incontrovertible. [...] We have no doubt that Senator Gravel may not be made to answer —either in terms of questions or in terms of defending himself from prosecution—for the events that occurred at the subcommittee meeting." With regard to this: > Would a Senator be safe in discussing the classified details in the House? "House of Congress" and "House of Representatives" are two different things. "the House" generally refers to the latter. "Their House" refers to the House of Congress the member actually belongs to. The clause is at least ambiguous on the question of whether a Senator has immunity in the House of Representatives, and whether a Representative has immunity in the Senate, but in this case it's unimportant. My hope is that a Senator will walk on to the floor of the Senate, or a Representative will walk on to the floor of the House of Representatives. [1]http://scholar.google.com/scholar_case?case=2739100783028836019&hl=en&as_sdt=2&as_vis=1&oi=scholarr http://scholar.google.com/scholar_case?case=2739100783028836...
  - rtb 13y ago
    Thanks. I was reading the semicolon as a list separator (like a comma), not a sentence separator (like a full stop / period). The use of a lower-case "and" after the semi-colon pushed me in that direction. It looks pretty conclusively like I was wrong. I have updated my comment. +1 from me for a senator to disclose the government's lies, then, so there can be an informed debate about the costs and benefits of mass surveillance.
- pzb 13y ago
  It helps to turns the language around and split it up: "They shall be privileged from Arrest during their Attendance at the Session of their respective Houses in all Cases, except Treason, Felony and Breach of the Peace. [They shall be privileged from Arrest] in going to and returning from the [the Session of their respective Houses in all Cases, except Treason, Felony and Breach of the Peace]. For any Speech or Debate in either House, they shall not be questioned in any other Place." Any Senator disclosing classified details would be violating Senate rules which would then place him or her subject to action by the Senate itself.
  - nknighthb 13y ago
    > Any Senator disclosing classified details would be violating Senate rules which would then place him or her subject to action by the Senate itself. There's only so much they can do, aside from blocking further access to classified information through official channels and stripping committee assignments. Expelling requires a 2/3rds majority, which I doubt they'd get, and Powell v. McCormack established that Congress can't prevent the initial seating of a duly elected, constitutionally qualified member.
- michaelt 13y ago
  The most common use of the semicolon is to join together two related clauses that could each be separate sentences, so the "; and" is interpreted like the start of a new sentence. That is: They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same. For any Speech or Debate in either House, they shall not be questioned in any other Place.

mtgx 13y ago

If Snowden isn't charged with treason, then I doubt a US senator will be charged with that. I think if they did the outrage and Wyden's support would be even bigger than it is for the "random NSA analyst" Snowden. I for one hope he will be running for president soon.

Shivetya 13y ago
Treason is defined by the Constitution and it is explicitly stated that Congress cannot modify its meaning. To whom that we are at war with has he helped? I supposed if he gave the information to the Taliban, but I doubt that would suffice. Text taken from Wikipedia article Article III, Section 3. This part of the Constitution strips Congress of the Parliamentary power of changing or modifying the law of treason by simple majority statute. It's not enough merely to think treasonously; there must be an overt act of making war or materially helping those at war with the United States. Accusations must be corroborated by at least two witnesses. Congress is a political body and political disagreements routinely encountered should never be considered as treason. This allows for nonviolent resistance to the government because opposition is not a life or death proposition. However, Congress does provide for other less subversive crimes and punishments such as conspiracy.[g]
- CWuestefeld 13y ago
  To whom that we are at war with has he helped? That's an easy question: nobody. We're not at war with anyone. The Congress thinks it's found an easy way around the ugliness of a formal declaration of war (e.g., the AUMF). But here's a wrinkle. If we haven't declared war, then we're clearly not at war in a legal sense. And thus, it can't trigger the treason definition.
  - rayiner 13y ago
    Nothing about "being at war" requires a "formal declaration of war." Not in the Constitution, nor by statute, nor at common law. See: http://en.wikipedia.org/wiki/Declaration_of_war_by_the_United_States http://en.wikipedia.org/wiki/Declaration_of_war_by_the_Unite....

lifeisstillgood 13y ago

Even so, an MP who stood up in a time of war and in public gave information that could "be of benefit to our enemies" would still face prosecution for Treason. And that's kind of the point.

3825 13y ago
Which war? The war in Afghanistan?
- lifeisstillgood 13y ago
  As no war has been officially declared since 1945, and we still have treason and traitors, I suspect you could use the War on Drugs as an excuse if you tried hard
  - deleted 13y ago
    [deleted]

michaelt 13y ago

The (classified) Pentagon Papers [1] were read into the congressional record without Mike Gravel being successfully prosecuted. I assume as the exclusion for Treason, Felony and Breach of the Peace is before the semicolon, it doesn't apply to the "they shall not be questioned in any other Place" after the semicolon. [1] https://en.wikipedia.org/wiki/Pentagon_Papers#Leak https://en.wikipedia.org/wiki/Pentagon_Papers#Leak

sharth 13y ago
And the question in the lawsuit had nothing to do with concern about Sen. Gravel's immunity, the concern was about immunity for his staffers.

danenania 13y ago

I think a credible argument can be made that disclosing activity which directly and obviously contravenes the constitution is not treason. I'd say the builders and enablers of an international secret totalitarian surveillance system are the ones guilty of treason. They are the traitors who should be on trial.

aqme28 13y ago
Well it's definitely not treason, but that's because our constitution defines treason in very narrow terms (which I think is good).