By Brendan Sasso - 08/15/13 09:01 PM EDT
Sen. Ron WydenRon WydenWeek ahead: Cyber Command in the spotlight Overnight Cybersecurity: House defense bill would elevate Cyber Command Dem introduces bill to block new government hacking powers MORE (D-Ore.), a longtime critic of the National Security Agency's (NSA) surveillance programs, told Rolling Stone that he considered disclosing classified information on the Senate floor prior to the leaks by former contractor Edward Snowden.
The Speech or Debate Clause of the Constitution shields members of Congress from prosecution for statements that they enter into the Congressional Record.
In a Rolling Stone interview published on Thursday, Wyden explained that he was frustrated with the NSA's refusal to publicly reveal the scope of its surveillance programs.
"A lot of people have just said to me, 'Well, you feel so strongly about [these issues] — when you knew this, why didn't you just go to the floor of the United States Senate and just, you know, read it all [into the record]?' And, of course, anybody who does this kind of work thinks a lot about that. You think about it all the time," he said.
"I can see why plenty of people would criticize me — progressives and others. I can understand why plenty of people who have views similar to mine would say they would have done it differently."
As a member of the Senate Intelligence Committee, Wyden has access to classified national security information.
For years, he and Sen. Mark UdallMark UdallEnergy issues roil race for Senate Unable to ban Internet gambling, lawmakers try for moratorium Two vulnerable senators lack challengers for 2016 MORE (D-Colo.) tried to raise the alarm about how the NSA was using its power under the Patriot Act and the Foreign Intelligence Surveillance Act to gather information, including on people in the United States. But because they were unable to disclose details of the programs, their warnings garnered little attention.
The Constitution's Speech or Debate Clause states that members of Congress “shall not be questioned ... for any Speech or Debate in either House."
Jonathan H. Adler, a law professor at Case Western Reserve University, said the clause would have almost certainly protected Wyden from prosecution for revealing classified information about NSA spying on the Senate floor.
"I can't say anything about what the Justice Department might have tried to do," Adler said. "But I think that would be extremely difficult [to prosecute]."
Last year, House Oversight Committee Chairman Darrell Issa (R-Calif.) entered details of a sealed wiretap application related to the "Fast and Furious" probe into the Congressional Record. The action would have likely been a criminal offense if not for the Speech or Debate Clause.