Congress Can – and Should – Declassify the TPP

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One of the most controversial aspects of the proposed Trans-Pacific Partnership (TPP) is the fact that the Obama administration has tried to impose a public blockade on the text of the draft agreement.

When Congress votes on whether to grant the president “fast-track authority” to negotiate the TPP – which would bar Congress from making any changes to the secret pact after it’s negotiated – it will effectively be a vote to pre-approve the TPP itself.

Although the other negotiating countries and “cleared” corporate advisers to the US Trade Representative have access to the draft TPP agreement, the American people haven’t been allowed to see it before Congress votes on fast track. Members of Congress can read the draft agreement under heavy restrictions, but they can’t publicly discuss or consult on what they have read.

Arguments Against Secrecy

Alan Beattie, who is sort of the economic globalization bureau chief at the Financial Times, recently challenged what he saw as the main establishment arguments in favor of this secrecy.

Beattie noted that:

1. Keeping the negotiating texts secret isn’t keeping other countries from getting secret knowledge about the US position in negotiations. They already have this information. “It’s the public that are being kept in the dark,” Beattie wrote. Who or what was harmed when WikiLeaks published the TPP chapter on intellectual property claims?
2. Interim texts are published for other important international negotiations – like on climate change. Indeed, interim texts were published on international trade agreements in the past.
3. Seeing the text at the end of the process isn’t good enough, because then it will be too late to change it. Saying that the public doesn’t get to see the text until the end is tantamount to keeping the public out of the process.
4. Unlike the Iran nuclear negotiations, the TPP is about commerce, not “national security.”

In fact, the Iran nuclear negotiations have arguably been more transparent to Congress and the American people so far than the TPP negotiations. After all, there’s been a sustained public argument over the likely provisions of the Iran deal. It’s very clear now to anyone who cares that the current P5+1 negotiations with Iran, if they succeed, will result in an agreement that allows Iran to enrich uranium. There’s no mystery about that. For those who oppose any agreement that allows Iran to enrich uranium, there’s no need to wait and see what deal emerges before criticizing.

Transparency Denied

Similarly, it’s knowable now that the Obama administration has no intention of trying to negotiate enforceable provisions against currency manipulation in the TPP.

Therefore, a yes vote on fast track now would be a vote to accept that the TPP will have no enforceable provisions on currency manipulation. But this is the kind of transparency that the public has so far been denied by officials shrouding the text and claiming that we shouldn’t talk about the details until the text has been finalized.

This example shows that the question of transparency around the TPP isn’t just a question of administration transparency. As in so many other cases, it’s also a question of congressional transparency.

The two-step process of voting on fast track now and the TPP later – when the fast track vote is in fact the key vote to approve the agreement, and when key, knowable provisions of the TPP agreement are shrouded in public fog at the time of the fast track vote – is designed to allow swing members of Congress to vote yes on fast track while pretending that they are not thereby voting yes on the TPP. Later, some of these members will vote no on passage of the TPP, just as former House Majority Leader Dick Gephardt (D-MO) cast a key enabling vote for fast track in 1991 and then subsequently voted against NAFTA.

Therefore, the transparency complaint should also be directed against Congress.

What Congress Can Do

Congress could, if it wants, declassify the TPP text.

Agitation to push Congress to declassify the TPP text could have the effect of putting members of Congress on the record on whether they think that the TPP text should be classified or not. If a substantial group of members supported such a move, they could pressure the administration to agree to declassification.

According to their own rules, both the House and the Senate can act unilaterally to declassify information in their possession.

As a McClatchy report noted in August 2013, the Senate version is in Section 8 of Senate Resolution 400, which established the Senate Select Committee on Intelligence. The House version is in 11(g) of the House Rule X. The rules authorize the chambers’ respective intelligence committees to vote to publicly disclose any information in the possession of the committee after concluding that the public interest would be served by such disclosure.

Both rules envision a multi-step process. First, the committee votes on whether to declassify. If the vote is yes, the president has an opportunity to object in writing, stating the reasons for the objection. If the president does not object, disclosure proceeds. If the president does object, the committee considers whether to proceed anyway, by referring the matter to the full chamber.

As the McClatchy report noted, these procedures have never been “used” in the sense of carrying them through to completion. However, they have been used as a threat to compel the administration to bargain in good faith with Congress over declassification. They were used in this way in the fight over declassification of the executive summary of the Senate Intelligence Committee’s report on the CIA’s use of torture.

And they could be so used in the present case. I called the Senate Intelligence Committee and confirmed that they have the power to move to declassify the TPP text if they want.

So, let’s push members of Congress who are complaining about the secrecy of the TPP to go on the record: Do you think that the intelligence committees should move to declassify the TPP negotiating text?