Rule XXI

Last night Monkey got a text message from AG saying that the Senate had invoked Article 21 and closed its doors. I called AG to find out what she was talking about and she directed us to listen to Randi Rhodes on Air America Radio. So we did. And I, of course, had questions about Article 21 and had to do some research.

Background

Authority for both the House and Senate to hold “secret sessions” comes from the Constitution: Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require secrecy… (Article 1, Section 5, Clause 3).

In the Senate, secret sessions for legislative and executive business are governed by Standing Senate Rules XXI, XXIX and XXXI. Under Rule XXI the Senate must close its doors when a motion to do so is made and seconded. The motion is not open for debate.

History

The Continental Congress and the Constitutional Convention met in secret. The Senate met in secret until 1794. The Senate’s executive sessions (those to consider nominations and treaties) remained secret until 1929.

Since 1929, the Senate has met behind closed doors 54 times, including yesterday. Secrecy has generally been due to reasons of national security. Exceptions:
· 2 sessions in January 1999 to discuss a motion to end President Bill Clinton’s impeachment trial and a motion to call witnesses in the trial;
· 4 sessions in February 1999 for final impeachment deliberations;
· once in 1997 when the Senate was considering the Chemical Weapons Convention Treaty;
· once in 1992 to debate China’s “most favoured nation” status;
· once in 1933 for the impeachment trial of a federal judge; and
· six times in the 1980s for consideration of impeachment articles against three other federal judges.

The House of Representatives

The House can also meet behind closed doors, but very rarely does so. The House had frequent secret sessions through the end of the War of 1812, and then again in 1825 and 1830. Since 1830, the House has only met in secret 3 times:
· 1979 to discuss the Panama Canal;
· 1980 to discuss assistance to Central America; and
· 1983 to discuss US support for paramilitary operations in Nicaragua.

The Issue of Transparency

Transparency is a problem. Proceedings of a secret session in either House of Congress remain secret unless the chamber votes to release them, which they can do either at the time or later. Released transcripts, which may be only a portion of or the entire session, are printed in the Congressional Record.

House of Representatives transcripts kept secret are released after 30 years. Senate transcripts, however, are kept secret “until the Senate votes to remove the injunction of secrecy.”

(Major Source: CRS Report for Congress)

Yesterday’s Secret Session

Senate Minority Leader Harry Reid (Dem – Nevada) called for the Senate to close its doors: “The troops have a right to expect answers and accountability worthy of [their] sacrifice. I demand on behalf of the American people that we understand why these investigations aren't being conducted.”

Senate Majority Leader Bill Frist (Rep – Tennessee) got all bent out of shape over Reid’s motion, which is the very funny part of the whole thing.

It seems that basically the Republicans were not following through on their promises to resume investigations into the Iraq pre-war intelligence debacle, and the Democrats wanted to force their hand. The outcome of the closed door session is that the Senate Intelligence Committee will resume its inquiry next week, and further, a special six-senator commission has been named to examine the status of the investigation itself.

Advantage: the minority party was able to force the majority party to deal with an issue they had been avoiding.

Disadvantage: the lack of transparency.