Congressional leaders should explain torture-policy decisions
(Update below)
An article in the Washington Post today provides previously undisclosed information about when and who in Congress was briefed on the administration’s torture policies, and raises several questions congressional leaders need to address, especially Democratic leaders.
In September 2002, four members of Congress met in secret for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody. For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi (D-Calif.), was given a virtual tour of the CIA’s overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk.
Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said.
“The briefer was specifically asked if the methods were tough enough,” said a U.S. official who witnessed the exchange.
A key issue is why lawmakers in oversight roles, “with one known exception,” did not renounce the torture techniques until two years and “about 30 private briefings” later. What could possibly justify lawmakers’ attitudes described as: “We don’t care what you do to those guys as long as you get the information you need to protect the American people.” Democrats with oversight responsibility during that period were Nancy Pelosi, Jane Harman, Bob Graham and Jay Rockefeller; however, “Graham said he has no memory of ever being told about waterboarding or other harsh tactics.”
An excuse Jane Harman provides is especially troubling. According to Harman:
When you serve on intelligence committee you sign a second oath — one of secrecy. I was briefed, but the information was closely held to just the Gang of Four. I was not free to disclose anything.
I do not know what provisions the supplemental oath may contain, but I find it hard to believe that it or any other committee-related oath takes precedence over their Congressional Oath. Last week I noted my concerns about committee members’ secrecy requirements supposedly preventing them from engaging activities that are detrimental to the nation and are contradictory to their Congressional Oath. Secrecy at the expense of the nation’s best interests is reprehensible.
Their solemn oaths withstanding, we do not know what the Bush administration presented to the leaders of the intelligence committees nor the context in which it may have been presented. Time-after-time the administration has made extravagant lies and employed extraordinary fear-mongering in order to achieve its objectives. And as the Post appropriately notes, the initial briefings “were closer to Sept. 11 and people were still in a panic.”
The initial torture-policies briefing was done in September 2002 – less than one month before George Bush delivered his infamous smoking gun, mushroom cloud speech. Did committee members allow fear to overtake them? Was the content and context of the briefings presented in a manner that the administration instilled fear at a level where the “do whatever it takes” approach was derived from the basic survival instinct? If just four months ago the administration would scare Congress with threats of imminent attacks – including on the Capitol – to get the Protect America Act passed, imagine what committee members were told in sworn secrecy before the invasion of Iraq.
Some may be inclined to grant Congress absolution for the wholesale acceptance of the Bush-Cheney administration’s prelude to invading Iraq – I do not – but no one in Congress can be excused for accepting bogus claims from the administration, regardless of the issue, a few months after the invasion of Iraq.
Lawmakers on the intelligence committees, especially Democratic lawmakers, need to explain their actions (or lack of) with respect to the administration’s torture policies. Furthermore, the matter of committee secrecy trumping lawmakers’ Congressional Oath – at the expense of the nation’s best interests – needs to addressed by Congress as a whole.
Update: Professor Michael Froomkin of the University of Miami School of Law deftly refutes Jane Harman’s (and others) claim, that a committee oath and secrecy agreements prohibited them from acting responsibly and exposing the Bush administration’s illegal torturing of detainees. This is the salient point of Prof. Froomkins argument, however I recommend reading the entire post.
Thanks to the Speech and Debate Clause there was a way for any Senator or Representative who wanted to blow the whistle to do so in a way that involved no risk of jail or fines – at worst they might have lost their security clearances (and even there the law is a little murky).
Article I, section 6 of the Constitution reads as follows,
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
(emphasis added)
The Speech and Debate clause has been interpreted to extend beyond floor speeches, e.g. to committee statements, but it unquestionably applies to floor statements. Thus, it would have been possible for Rep. Harman, or Senator Rockefeller, or the others allegedly briefed to go to the floor, either during the times when members may speak on topics of their choice, or under one of the extraordinary mechanism for privileged statements, and denounce the Bush administration’s determinate to torture helpless captives in secret offshore detention facilities.
Specifically referencing Harman’s second oath, Prof. Froomkin writes:
Serious people take oaths …seriously and are right to do so; but before they took that second oath, they took a first one upon taking office in which they promised to “preserve and defend the Constitution of the United States.” To the extent that the second oath allows the executive to muzzle members of Congress, it is unconstitutional under any theory.
Simply put, Harmans’ secrecy shield and tactics such as Jay Rockefeller’s handwritten note to Dick Cheney are pure rubbish.
