Sen. Mark Udall Contemplates Revealing CIA Torture Report

U.S. Senator Mark Udall addresses guests at a Democratic Party event at the Westin Denver Downtown Hotel on November 4, 2014. Doug Pensinger/Getty

As Colorado Senator Mark Udall's time in Congress comes to a close, he has some things he'd like to get off his chest.

In his first interview since losing his seat in the midterm elections, the Democrat told The Denver Post on Thursday that in his final weeks in office he will "keep all options on the table" to expose the severe interrogation techniques currently tucked away in the Senate's still-classified CIA torture report.

Among those options is a rarely used power afforded to members of Congress that would allow him to read the report into the congressional record. A chorus of people, from civil liberties advocates to politicians, have urged Udall to take advantage of this power, but there are consequences he must consider.

After the Republicans won a majority in the Senate last Tuesday, their leadership quickly met to discuss what the party's first move would be: passing legislation that had been blocked by the Democratic-controlled Senate. But many across the aisle fear that the Republicans will try to do some blocking of their own, like preventing the release of the torture report.

Sen. Richard Burr, R-N.C., a vocal defender of enhanced interrogation techniques, is expected to replace Sen. Dianne Feinstein, D-California, as head of the Senate Intelligence Committee. Feinstein has been working since March 2009 to bring the "enhanced interrogation techniques" to light.

Despite President Barack Obama's declaration that "[w]e need to look forward as opposed to looking backwards" before taking office, Feinstein announced in March 2009 that the Intelligence Committee would conduct a study of the CIA's interrogation program during George W. Bush's administration.

After a lengthy process, the Senate review was completed in December 2012. The report is more than 6,000 pages long, divided into three volumes, and cost more than $40 million to create. Though the committee voted at the end of 2012 to begin the process of declassification, a public release has been perpetually delayed ever since.

In March 2014, sources said the CIA objected to most of the report's contents and was assembling "a defiant response." Government dissatisfaction with the Senate's probe burst onto the public stage when Feinstein announced in a floor speech that the CIA had spied on the computers Senate staffers were using to conduct their investigation.

By April 2014, it was up to the CIA to complete its declassification review. But when it finally came out, "the administration's redactors had behaved like a bunch of third-graders off their Ritalin, running amok with black markers," wrote Victoria Bassetti, a former Senate Judiciary staffer. "The proposed redactions rendered the report incomprehensible."

Senate staffers say that the Obama administration has been stalling the release until the Senate flips to Republican control in a few months, and that Burr is just what the CIA needs to kill the report.

"For those of you who think the Obama administration doesn't know how to work with Republicans, think again," Bassetti said. "North Carolina's Republican senator, Richard Burr, may soon be one of the Obama administration's best friends."

Though Burr, who has attacked the credibility of the Feinstein investigation, voted to declassify the report in April, he said he was doing so only to show the American people how inaccurate it was.

"I voted today to declassify the report to give the American people the opportunity to make their own judgments," he said. "I am confident that they will agree that a 6,300-page report based on a cold document review, without a single interview of intelligence community, Executive Branch or contract personnel involved, cannot be an accurate representation of any program, let alone this one."

Burr continued, "Based on what I have learned as a member of the House and Senate Intelligence committees, I firmly believe that the CIA's detention program saved lives and played a vital role in ensuring that our nation had the intelligence it needed to successfully combat Al-Qaeda in the days following 9/11 and in the years since that fateful day."

With his support of the Bush-era techniques mixed with his affinity for secrecy, it is likely Burr won't see Feinstein's aims through. "I personally don't believe that anything that goes on in the Intelligence committee should ever be discussed publicly," he told reporters back in March. "If I had my way, with the exception of nominees, there would never be a public intelligence hearing."

But Udall warned on Thursday that "[t]rying to run out the clock…is not an option. The truth will come out."

Reporter Ali Watkins argues in The Huffington Post that because the report is Feinstein's landmark legislative feat, she is unlikely to allow Burr to bury it. "Rather, Feinstein will probably push to release the executive summary before she loses her chairmanship in January," she writes. But the number of CIA redactions that Feinstein may have to settle for to rush the report through is a legitimate concern.

"I'm not going to accept the release of any version of the executive summary that doesn't get out the truth of this program," Udall told the Post. "Not only do we have to shed light on this dark chapter of our nation's history, but we've got to make sure future administrations don't repeat the grave mistakes."

As Senator Mike Gravel of Alaska did in 1971 with the Pentagon Papers, Udall could take advantage of the "speech or debate clause" and read on the Senate floor the least-redacted version of the report he can find. He probably has some version that can't be released, or Feinstein would have released it by now.

Newsweek talked with William C. Banks, director of the Institute for National Security and Counterterrorism at Syracuse University, where he also teaches law, about the legal ramifications if Udall makes this move.

"The legal picture is pretty clear and involves part of the Constitution that's not widely discussed…[the speech or debate clause]," Banks said. "[I]t says the senators and representatives shall, in all cases except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session, in going to and from the session, nor for any speech or debate in either house shall they be questioned in any other place."

The clause was inserted into the Constitution in order to protect members of Congress from being intimidated by other branches of government. And the last portion ("nor for any speech or debate in either house shall they be questioned in any other place") is what would protect Udall.

"If he just stood up in either the Intelligence Committee or the Armed Services Committee and started reading from the report, there's nothing that anyone in the Executive Branch or courts could do about it," Banks said.

But he'd have to read the whole thing—all 6,000 pages (which could take hundreds of hours)—because otherwise he would have to ask for unanimous consent for the report to be entered into the record. "And of course if he did this in the next month and a half or two months, his committee colleagues are not going to give him unanimous consent," Banks said.

The way out of this conundrum is to follow what Gravel did the last time a senator employed the speech or debate clause. Gravel called a subcommittee meeting late at night so no one would be around to object.

But Banks said there are many things for Udall to consider, such as his place in the Senate's history—what he wants to be remembered for. "I would hope that Senator Udall would want to enjoy that legacy in history," Gravel told the Post.

"We tend to lose sight of [the clause's purpose], Banks said. "It's to protect the independence of the members and their ability to do their job without the fear of intimidation by either the executive or the courts. And for those of us who are the voters, regardless of whether it is Udall or anyone else, we have to appreciate the value of that protection so that those who we elect to represent us can be effective in their jobs."