# FBI Investigating Congress: SOP Issue?
**URL:** https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029
**Category:** Great Debates
**Created:** [August 2, 2002, 4:10pm UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029 "2002-08-02T16:10:50Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@IzzyR](https://boards.straightdope.com/u/IzzyR)
#### Post date: [August 2, 2002, 4:10pm UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029/1 "2002-08-02T16:10:50Z")
[FBI Leak Probe Irks Lawmakers](http://www.washingtonpost.com/wp-dyn/articles/A33821-2002Aug1.html)
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> FBI agents have questioned nearly all 37 members of the Senate and House intelligence committees and have asked many if they would be willing to submit to lie detector tests as part of a broad investigation into leaks of classified information related to the Sept. 11 attacks, according to officials involved in the inquiry.
> Most of the lawmakers have told the FBI they would refuse a polygraph, citing the constitutional separation of powers between the legislative and executive branches of government and the unreliability of the exam, those involved in the inquiry said.
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> Although the chairmen of the intelligence committees, Sen. Bob Graham (D-Fla.) and Rep. Porter J. Goss (R-Fla.), asked the FBI to conduct the inquiry, its unprecedented scale has angered some lawmakers, according to people close to the investigation. The lawmakers are unhappy that the FBI, an agency they oversee, is investigating them.
I don’t see the unreliability as a big issue - I don’t see Congressmen being different than other people in this regard (I don’t know if the FBI can force ordinary suspects to take lie detector tests - I don’t think they can).
The question is if there is a legitimate Separation of Powers issue, in the FBI investigating the Legislative Branch. I wouldn’t think there is. I would understand if the Executive Branch was second-guessing official acts of Congress. But here the suspicion is that a person who happens to be a member of the Legislative Branch has committed an ordinary crime, outside his/her official duties (using information that they came upon in their official capacity). So I don’t see the issue as being significant.
Another angle is that the Chairmen of the intelligence committees asked the FBI to investigate. This may make the FBI - in this particular instance - something of an arm of Congress, similar to any other entity that Congress might designate for the investigation.
So I am inclined to think that this is just a bunch of righteous indignation by arrogant Congressmen.
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### Author:  [@KellyM](https://boards.straightdope.com/u/KellyM)
#### Post date: [August 2, 2002, 5:24pm UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029/2 "2002-08-02T17:24:20Z")
Members of Congress are explicitly immune to any action by the Executive with respect to anything they do while actually in session. If a Congressman takes it upon himself to announce state secrets on the floor of the House, the FBI cannot touch him: he is completely immunized by Article I, Section 6, paragraph 1: “they shall not be questioned in any other Place.” Congress, and only Congress, may act against a Congressman who divulges state secrets during any meeting of Congress.
The Constitution has this clause in it because King George had a habit of having Members of Parliament arrested for statements made in debate in Parliament which King George did not agree with. Now, it sounds like King George is at it again. Thankfully, our forefathers saw the possibility of another King George arising and protected Congress from such despotic tyrants. Hopefully, their wisdom will win the day.
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### Author:  [@IzzyR](https://boards.straightdope.com/u/IzzyR)
#### Post date: [August 2, 2002, 6:34pm UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029/3 "2002-08-02T18:34:41Z")
In this instance, though, they are not suspected of having leaked it on the floor of the House. Rather, privately to members of the Press. Would it make a difference if he called up reporter from his Congressional office, as opposed to his home?
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### Author:  [@Spoke](https://boards.straightdope.com/u/Spoke)
#### Post date: [August 2, 2002, 6:53pm UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029/4 "2002-08-02T18:53:48Z")
So what big “state secrets” have been leaked to the press, anyhow?
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### Author:  [@Spoke](https://boards.straightdope.com/u/Spoke)
#### Post date: [August 2, 2002, 7:00pm UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029/5 "2002-08-02T19:00:13Z")
Ah, never mind. Found it in the story:
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> They are trying to find the source of news stories that quoted Arabic communications making vague references to an impending attack on the United States, which were intercepted by the NSA on Sept. 10 but not translated until Sept. 12.
Looks to me like either the FBI or the Bush administration is trying to plug leaks which they might find _embarrassing_. (As opposed to leaks which are genuinely a matter of national security.) If that is the case, it does raise separation of power issues.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [August 2, 2002, 7:02pm UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029/6 "2002-08-02T19:02:24Z")
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> \*Originally posted by KellyM \*
> \*\*The Constitution has this clause in it because King George had a habit of having Members of Parliament arrested for statements made in debate in Parliament which King George did not agree with. Now, it sounds like King George is at it again. Thankfully, our forefathers saw the possibility of another King George arising and protected Congress from such despotic tyrants. Hopefully, their wisdom will win the day. \*\*
The despotic tyrant in question is who? Senator Bob Graham?
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### Author:  [@Spoke](https://boards.straightdope.com/u/Spoke)
#### Post date: [August 2, 2002, 7:09pm UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029/7 "2002-08-02T19:09:55Z")
It was a mistake for Graham to join in the request for an investigation. He opened a door he shouldn’t have, but now it sounds to me like the FBI is barrelling through that door (perhaps with some coaxing from the Administration).
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### Author:  [@IzzyR](https://boards.straightdope.com/u/IzzyR)
#### Post date: [August 2, 2002, 7:27pm UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029/8 "2002-08-02T19:27:16Z")
I don’t see why it makes a difference to the SOP issue whether the administration is doing it for this or that reason. Less honorable, but the issue remains the same. (Similarly, if the Congress uses it’s oversight of the Executive branch to embarrass the Prez, he might squawk about it, but it does not - of itself - raise SOP issues).
But FWIW, it makes sense that revealing intercepted communications can have grave consequences, as those whose communications were intercepted become aware their communication is compromised. (IIRC, there is considerable speculation as to whether the Allies in WWII suffered some damage rather than reveal that they had cracked the German code - but I may be wrong in this).
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### Author:  [@Beagle](https://boards.straightdope.com/u/Beagle)
#### Post date: [August 2, 2002, 7:38pm UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029/9 "2002-08-02T19:38:27Z")
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> **from the article** Defense Secretary Donald H. Rumsfeld has started an investigation at the Pentagon into the source of a New York Times story last month that laid out one possible plan in a war against Iraq.
I believe I heard on television\* that this was the issue the FBI wanted to investigate. Still, I cannot imagine going up to the Hill and hooking electrodes to constitutionally elected leaders - especially when it cannot produce admissible evidence. Although if anyone in crucial national security positions can be compelled to take a lie detector test (they can), why not Congress? National security, right?
Bottom line: to me this seems very odd. First the PATRIOT Act (one of the most Orwellian names ever), then tribunals, the attack on attorney-client privilege, the duplicitive Homeland Security crap, the TIPS program, now this. I am sure I left a lot out. Will any of this stuff lead to the capture of ONE terrorist? This all seems like feel good (or in my case bad) activity designed to shift attention away from bungled federal investigations.
\*Yeah, I know. TV and facts, strange bedfellows.
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### Author:  [@sailor](https://boards.straightdope.com/u/sailor)
#### Post date: [August 2, 2002, 7:44pm UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029/10 "2002-08-02T19:44:13Z")
Ahem, “while in session” does not mean “while inside the building”. It means as long as they are serving their mandate. to be arrested or prosecuted the legislative must give leave to the executive. Witness the recent case of Traficant.
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> [Washington Post:](http://www.washingtonpost.com/wp-dyn/articles/A33821-2002Aug1.html)
> During a congressional hearing Wednesday, Sen. John McCain (R-Ariz.) questioned Rumsfeld about the level of the administration’s concerns about leaks over Iraq policy, telling the defense secretary that unwanted disclosures are “a game that was played when you first came here nearly 30 years ago, and it will probably be played 30 years from now.”
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> “The fact is that there are competing proposals within the administration, and certain people are using or attempting to gain advantage by leaking information . . . and when it is resolved within the administration . . . then I think you’ll find the leaks will stop,” McCain said.
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### Author:  [@IzzyR](https://boards.straightdope.com/u/IzzyR)
#### Post date: [August 2, 2002, 7:55pm UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029/11 "2002-08-02T19:55:53Z")
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> \*Originally posted by sailor \*
> Ahem, “while in session” does not mean “while inside the building”. It means as long as they are serving their mandate. to be arrested or prosecuted the legislative must give leave to the executive. Witness the recent case of Traficant.
I wasn’t saying the building was the critical issue - I was tossing out the notion that things might be more likely to be construed as “official business” if conducted from their offices.
What you now seem to be saying is that Congress has a sort of parliamentary imunity - is this correct? (Would it have applied to Gary Condit? What was the deal with Trafficant - was he immune?)
Also, I think both you and **beagle** are confusing two different leaks.
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### Author:  [@Beagle](https://boards.straightdope.com/u/Beagle)
#### Post date: [August 2, 2002, 8:04pm UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029/12 "2002-08-02T20:04:06Z")
I just heard two people on Fox (I think Monica Crowley and David Korn) debating this very fact. It is not clear what the FBI wants to investigate. Of course, the FBI’s jurisdiction would extend to any national security leak. There is nothing to prevent them from investigating anything within their jurisdiction.
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### Author:  [@IzzyR](https://boards.straightdope.com/u/IzzyR)
#### Post date: [August 2, 2002, 8:25pm UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029/13 "2002-08-02T20:25:31Z")
**Beagle** , it appears to me that they are investigaing both leaks - one at Congress and the other atthe Pentagon.
One more comment about this
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> Experts in the separation of powers said yesterday that the FBI investigation raised serious concerns about whether lawmakers would feel free to aggressively review the performance of intelligence agencies and the FBI.
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> “Now the FBI can open dossiers on every member and staffer and develop full information on them. It creates a great chilling effect on those who would be critical of the FBI,” said Charles Tiefer, a University of Baltimore law professor and former House deputy general counsel. “The FBI, with their great boots, are tramping around on ground that is privileged and privileged for good reason, to preclude intimidation of members.”
I’m uncertain if this guy is saying that he doesn’t think it is a good idea, or if he thinks it violates the Constitution. If the former, I would venture to point out that the SOP is also threatened indirectly by the leaks themselves, if the Executive branch becomes skeptical of the ability of Congress to keep secrets secret.
(I seem to recall some issue involving Bob Toricelli & the CIA several years ago, but I don’t know if there were any consequences for him or not - certainly nothing that prevented him from moving up to the senate).
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### Author:  [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)
#### Post date: [August 2, 2002, 8:46pm UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029/14 "2002-08-02T20:46:43Z")
**KellyM,** I think your reading of Art. I s. 6 is overbroad. Congresspersons are immune from arrest for anything they _say_ in session, and may not be arrested (except for treason, felony, or breach of the peace) _during_ session or while traveling to or from session. But if they commit a crime during session, they can be arrested for it - the cops simply have to wait until the congressman gets home and sits down for dinner.
Overall, IMO there is nothing improper _per se_ about the executive investigating members of the legislative. Whether the subject of the investigation is proper, or merely a political exercise is a different question.
Sua
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### Author:  [@Spoke](https://boards.straightdope.com/u/Spoke)
#### Post date: [August 2, 2002, 9:05pm UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029/15 "2002-08-02T21:05:42Z")
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> I don’t see why it makes a difference to the SOP issue whether the administration is doing it for this or that reason.
Two possible scenarios:
Case 1: Leaks are being investigated because national security is at stake (_i.e._, the leak directly or indirectly puts lives at risk).
Case 2: Leaks are being investigated because the information being leaked is politically embarrassing to the executive branch.
In the latter case, the executive branch is using its power to protect its turf. Members of the legislative branch are (potentially) being intimidated for no greater purpose than to expand the power of the executive branch. The executive branch in general, and the FBI in particular, should not be placed in a position which might allow it to blackmail members of Congress.
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### Author:  [@IzzyR](https://boards.straightdope.com/u/IzzyR)
#### Post date: [August 2, 2002, 9:14pm UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029/16 "2002-08-02T21:14:19Z")
Spoke-, I’m sorry but I don’t see what you’ve added to your previous post on the subject. (Other than suggesting that political embarresment is the same as protecting it’s turf, which I don’t agree with, but no difference here). My point still stands - it may be a “bad thing” but that does not imply that it changes the constitutional issues regarding SOP.
Consider the flip side that I’ve brought up earlier. Suppose the main motivation of Congress in investigating the Executive branch is to cause political embaressment (or expand Legislative power, if you will) - would you consider this in violation of the SOP, or would would you just consider it part of the usual political games? I don’t see a difference between the two scenarios - SOP works both ways.
**Sua** , I take it that you are disputing the assertions of **sailor**. Correct?
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### Author:  [@Spoke](https://boards.straightdope.com/u/Spoke)
#### Post date: [August 2, 2002, 9:52pm UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029/17 "2002-08-02T21:52:11Z")
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> Consider the flip side that I’ve brought up earlier. Suppose the main motivation of Congress in investigating the Executive branch is to cause political embaressment (or expand Legislative power, if you will) - would you consider this in violation of the SOP, or would would you just consider it part of the usual political games?
Yes, I would consider that a violation of the SOP. It was wrong when Congress did that to Clinton. It would be wrong for Congress to do it to Bush.
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### Author:  [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)
#### Post date: [August 2, 2002, 10:56pm UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029/18 "2002-08-02T22:56:10Z")
**IzzyR,** I was distracted while writing my last post - I didn’t know that **sailor** had posted. But while we are here, I guess I am disputing **sailor’s** assertion, though not with great conviction. My Con Law professor taught that the language “during their Attendance at the Session of their respective Houses, and in going to and returning from same” meant only while in the Capitol during a called session, and travel to and from same.
However, I note that this clause is not a crucial issue of constitutional jurisprudence, and my Con Law professor spent all of two minutes on it. He may have misstated it, or I may have misremembered. IOW, I think I’m right, but I’m not taking wagers. 😃
Sua
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### Author:  [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)
#### Post date: [August 3, 2002, 7:08pm UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029/19 "2002-08-03T19:08:15Z")
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> \*Originally posted by IzzyR \*
> Consider the flip side that I’ve brought up earlier. Suppose the main motivation of Congress in investigating the Executive branch is to cause political embaressment (or expand Legislative power, if you will) - would you consider this in violation of the SOP, or would would you just consider it part of the usual political games? I don’t see a difference between the two scenarios - SOP works both ways.
The Constitution doesn’t consider the motivations of the branches - it just delimits the power of the branches. The Congress investigating the Executive branch in order to cause political embarassment and the Congress investigating because there are rumours the Attorney General killed somebody is the same thing, Constitutionally speaking. They either are allowed constitutionally or they are not.
There may be a _statutory_ difference. An investigation designed to cause political embarassment may be considered an abuse of authority, or wastage of public funds or some such.
Sua
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### Author:  [@Narile](https://boards.straightdope.com/u/Narile)
#### Post date: [August 4, 2002, 2:25am UTC](https://boards.straightdope.com/t/fbi-investigating-congress-sop-issue/122029/20 "2002-08-04T02:25:21Z")
To get a higher than Top Secret security clearence almost always requires that the applicant agree to a polygraph test. You don’t agree to the polygraph test, you don’t get the clearence. An exception to this, members of Congressional security committees. These polygraph tests are very specific and not general BTW, the guidelines are well deliminated when they are given.
Just another special ‘perk’ of being a member of Congress.