by digby

Yesterday on CNN I heard author Ronald Kessler say:

Inside the CIA are dismayed these tapes were destroyed. But at the same time, these techniques are something that worked and that were approved by congress and that were needed to protect us.

I was aghast because we know torture didn't work, it wasn't (explicitly anyway) approved by congress and it wasn't needed to protect us --- and CNN offered no rebuttal to those claims.

How stunned I was to click over to the Washington Post this morning to learn that people in the CIA say that congress did approve it. Or, at least, members of the leadership knew about it, did nothing, and have then spent the last few years pretending to be shocked and appalled to learn the administration was doing such things.

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.

Congressional leaders from both parties would later seize on waterboarding as a symbol of the worst excesses of the Bush administration's counterterrorism effort. The CIA last week admitted that videotape of an interrogation of one of the waterboarded detainees was destroyed in 2005 against the advice of Justice Department and White House officials, provoking allegations that its actions were illegal and the destruction was a coverup.

Yet long before "waterboarding" entered the public discourse, the CIA gave key legislative overseers about 30 private briefings, some of which included descriptions of that technique and other harsh interrogation methods, according to interviews with multiple U.S. officials with firsthand knowledge.

With one known exception, no formal objections were raised by the lawmakers briefed about the harsh methods during the two years in which waterboarding was employed, from 2002 to 2003, said Democrats and Republicans with direct knowledge of the matter. The lawmakers who held oversight roles during the period included Pelosi and Rep. Jane Harman (D-Calif.) and Sens. Bob Graham (D-Fla.) and John D. Rockefeller IV (D-W.Va.), as well as Rep. Porter J. Goss (R-Fla.) and Sen. Pat Roberts (R-Kan).

That is not an abdication of oversight responsibilities. That's complicity.

Torture is beyond the pale. It is unconstitutional, illegal and immoral, and no oath of secrecy to the Intelligence Committee supersedes that. As Glenn Greenwald wrote some time back:

There are countless mechanisms available to a U.S. Senator or Representative to do something about illegal behavior they discover. Anyone -- not just someone in such a position -- has mechanisms available to them under whistleblower laws to initiate proceedings to investigate illegal government conduct. Why couldn't they have done that?

They could have also communicated much more aggressively within the government that unless the illegal behavior stopped, they would invoke those mechanisms. Why couldn't they have done that?

They could also commence closed door investigations to exert oversight over these illegal intelligence activities. The whole point of the SECRET SELECT INTELLIGENCE COMMITTEES is to enable Congress to exercise oversight even over the most secretive governmental conduct, precisely in order to prevent illegal behavior of this sort.

I'm amazed that there are people willing to depict Rockefeller and Harman as some sort of helpless victims who were unable to act. They could have taken numerous steps to impede, if not stop and expose, the criminal conduct of which they became aware. Yet they didn't -- not because they couldn't, but because they didn't want to.

That's the only reasonable explanation for this behavior. They approved of it. You simply cannot persuade me that there was no way that people in their positions couldn't have buttonholed enough members of their party in congress to say, "trust me on this. These people have done some things which I can't tell you in detail, but which you need to understand are unAmerican. We must take a stand." Harman and Rockefeller would have been listened to. So would Pelosi and Graham (who says he doesn't remember the briefing and has spoken out vociferously about torture since then.)

There are many examples over these last few years of people who did the right thing at great risk to themselves. Think of Joseph Darby at Abu Ghraib, or Lt. Commander Charles Swift who defended Salim Ahmed Hamdan and lost his military career over it. Longtime government servants like John Brady Kiesling resigned in protest at the outset of the Iraq war and many others have come forward since to reveal what they knew. Richard Clark famously testified before congress. Even the arch conservatives in the Justice Department threatened to resign over the excesses of the Bush administration's terrorism policies.

But these powerful congressional overseers knew and did nothing.

Marty Lederman points out that this has been an ongoing problems:

Jay Rockefeller is constantly learning of legally dubious (at best) CIA intelligence activities, and then saying nothing about them publicly until they are leaked to the press, at which point he expresses outrage and incredulity -- but reveals nothing. Really, isn't it about time the Democrats select an effective Chair of the Senate Intelligence Committee, one who will treat this scandal with the seriousness it deserves, and who will shed much-needed light on the CIA program of torture, cruel treatment and obstruction of evidence? ...

Jane Harman also knew of the intention to destroy the tapes, and she at least "urged" the CIA in writing not to do it. (Where were her colleagues?) But when she found out the CIA had destroyed the tapes, where was Harman's press conference? Where were the congressional hearings?

Neither Jay Rockefeller, Nancy Pelosi or Jane Harman even tried to get the word out, ever. If this story is correct, and their lukewarm excuses imply that it is, throughout the debate over torture these three people, which the constitution entrusts as congresses' representatives to oversee the executive branch, have behaved with cowardice and complicity. There's just no excuse for them. They knew the government was engaging in torture and stood by as revelation after revelation came out, spinning like mad, hiding their own knowledge:

Earlier this week, after the New York Times revealed that the Bush administration gave the CIA secret approval in 2005 to use harsh interrogation techniques, White House Press Secretary Dana Perino asserted that members of Congress had been “fully briefed” on the secret opinions.

On Fox News Sunday today, House Speaker Nancy Pelosi, who as minority leader in 2005 would have been informed of the most highly classified information, said that she had not been briefed “about the secret memos” in 2005:

CHRIS WALLACE: You were never briefed about these secret memos in 2005?

NANCY PELOSI: No, not about the secret memos.

Here's a question asked by D-Day at a local Jane Harman town hall meeting:

I asked the question to Harman about the secret memos. Earlier this week, the White House claimed that all relevant members of Congress had been fully briefed on the classified program sanctioning harsh interrogation techniques by the CIA. At the time of the memos, Harman was a member of the "Gang Of Eight" routinely briefed on intelligence matters. Harman was shaking her head as I asked the question if she was fully briefed, chuckling almost in disbelief. Her answer:

We were not fully briefed. We were told about operational details but not these memos. Jay Rockefeller said the same thing, and I associate myself with his remarks. And we want to see these memos.

Once again, spinning madly about how they hadn't been told about "secret memos" while obscuring the fact that they had been fully apprised of the torture regime itself years before. Harman admits that she knew "operational details" but very cleverly acts as though that wasn't particularly salient compared to the "secret memos."

The simple fact is that Jay Rockefeller, Jane Harman and Nancy Pelosi have known since 2002 that the US Government was engaging in torture. They have done next to nothing to stop it and have not used the power of their offices to reveal it or guide the congress to investigate it.

Maybe Rockefeller and Pelosi can't be budged, but Harman had a serious primary challenge last time and she could lose her seat if her constituents get upset enough. Her district is right next door to mine and I'll be happy to canvas and call and do whatever it takes to ensure that my neighbors are represented by someone who doesn't believe that waterboarding is acceptable practice for a civilized nation.

Update: Michael Froomkin writes:

The emerging consensus in the blogosphere seems to be that even if they had the presence of mind to object, the Representatives and Senators who were briefed were in a bind: as members of the Intelligence Committees or the leadership, they signed various secrecy pledges which stopped them from going public. To go public, it seems to be agreed, was to “jeopardize their careers and risk jail” as Kevin Drum put it; even so, Matthew Yglesias suggests that this called for civil disobedience, and that the representatives should have dared the administration to arrest them.

All this misses a critical aspect of our constitutional structure. 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.

It's true that this would have been politically painful immediately after 9/11 and there would have been those who called it treasonous. But that was five years ago. After all we know, is there any reason that one of these people couldn't have come forward more recently if they had a problem with it? I don't think there would have been any political fallout for them from 2005 on and probably not before. They could have put the administration on notice very early that they would not go along.