The House and Senate Security Manuals have been the focus of litigation between journalist Shawn Musgrave and the House and the Senate. Musgrave is litigating whether a common law right of access exists for congressional documents, and he is ably represented by Kel McClanahan of National Security Counselors. He recently had a big win.
I’ve been following the litigation in part because I care about how clearances work in the House and Senate, having co-written a monograph on the topic; in part because of recommendations of the FOIA Advisory Committee to create a FOIA-like process for components of the Legislative branch; in part because I provided an affidavit concerning the contents of the manuals; and in part because it appears that counsels for the House and Senate attempted to mislead the court as to the contents of the manuals in an effort to case the case dismissed.
Specifically, in legal filings the House and Senate asserted the documents “merely provide general advice, guidance, and best practices.” My affidavit provides specific examples where they in fact contain requirements and mandates.
This is where it gets fun. From Musgrave’s filing:
After Musgrave demonstrated that he could disprove Defendants’ inaccurate and misleading claims about the contents of the Manuals, the Senate and House Defendants released full copies to Musgrave and filed a fourth motion to dismiss, this time arguing mootness.
LOL. So the House and Senate released the security manuals to Musgrave only after it was demonstrated that they had been, uh, less than straightforward about their contents. They did so in an attempt to get the case dismissed despite its obvious merits. And Musgrave has now filed those documents with the federal courts as part of the litigation, which (in theory) means that anyone can download the filings.
So we did. The House and Senate Security Manuals are available on PACER, the federal court’s online records system, but you have to pay for access from a byzantine tech system. We paid the PACER fees to download the documents and are publishing them online for you. Here they are, in their glory: House Security Policy Manual, Senate Security Manual.
I wouldn’t want to suggest that the House and Senate have wasted tens of thousands of dollars of public money to prevent the release of documents that are anodyne in content and mislead the court in their efforts to do so until caught out, but….
For more on efforts to elucidate a common law right of access to Congressional records, check out this Josh Gerstein Politico story from August 2021.
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