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Tilting at Windmills

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December 9, 2007
By: Kevin Drum

HARSH INTERROGATION....The sources for this story are so obviously intent on discrediting congressional Democrats that it's hard to know whether to take it at face value, but the Washington Post reports today that Democratic leaders in the House and Senate were fully briefed about the CIA's "harsh" interrogation methods beginning shortly after 9/11 and — with the exception of Jane Harman — issued no protests:

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.

....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).

...."In fairness, the environment was different then because we were closer to Sept. 11 and people were still in a panic," said one U.S. official present during the early briefings. "But there was no objecting, no hand-wringing. The attitude was, 'We don't care what you do to those guys as long as you get the information you need to protect the American people.' "

The Post reports a variety of reactions from the six congressional leaders who knew about the CIA program:

  • "Among those being briefed, there was a pretty full understanding of what the CIA was doing," said Goss.

  • Graham said he has no memory of ever being told about waterboarding or other harsh tactics.

  • A congressional source familiar with Pelosi's position on the matter said the California lawmaker did recall discussions about enhanced interrogation. The source said Pelosi recalls that techniques described by the CIA were still in the planning stage — they had been designed and cleared with agency lawyers but not yet put in practice — and acknowledged that Pelosi did not raise objections at the time.

  • Harman, who replaced Pelosi as the committee's top Democrat in January 2003, disclosed Friday that she filed a classified letter to the CIA in February of that year as an official protest about the interrogation program.

  • Roberts declined to comment on his participation in the briefings.

  • Rockefeller also declined to talk about the briefings.

Bottom line: it looks like they all knew about it (Graham's denial is unconvincing given that Harman, Pelosi, and Goss all admit they were briefed and Harman even wrote a formal letter of protest), and it looks like most of them didn't have a problem with it. Another great day for the Republic.

But: good for Jane Harman. You may think that congressional leaders ought to jeopardize their careers and risk jail in order to publicly protest stuff like this, but, sadly, in the real world that's not in the cards. Whatever else you can say, it appears that Harman did a helluva lot more about this than anyone else.

Kevin Drum 1:27 PM Permalink | Trackbacks | Comments (175)

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If this turns out to be true, I would encourage Nancy Pelosi to resign. As Avedon Carol says, this sheds an new light on her refusal to consider impeachment.

Posted by: jerry on December 9, 2007 at 1:40 PM | PERMALINK

This really is grounds for asking Pelosi to resign.

She swore to uphold the Constitution, right?

Posted by: Old Hat on December 9, 2007 at 1:41 PM | PERMALINK

Offtopic but important: More death from "the Religion of Peace." (No, not that religion of peace, the other one.)

Children are targets of Nigerian witch hunt
[Christian] Evangelical pastors are helping to create a terrible new campaign of violence against young Nigerians. Children and babies branded as evil are being abused, abandoned and even murdered while the preachers make money out of the fear of their parents and their communities

Posted by: jerry on December 9, 2007 at 1:50 PM | PERMALINK

Bob Graham, who I like and who was one of only 2 red-state senators to vote against the Authorization to Use Military Force in Iraq, did have a penchant for note-taking that bordered on the fanatical. I suspect he kept classified notebooks loaded with details in repositories in his office. Did that get destroyed on his retirement from the Senate, or is it in the archives somewhere? If they exist, I'm sure they will specify who said what and when, right down to the nearest minute of time.

Posted by: Greg in FL on December 9, 2007 at 1:53 PM | PERMALINK

Ugh. It's fair to note, though, that a lot of people were behaving in a demented fashion at that point. And that being demented then doesn't excuse the people who are behaving in a demented fashion now.

Posted by: MattF on December 9, 2007 at 1:57 PM | PERMALINK

Can someone remind me why I'm supposed to be a Democrat and how exactly, in practical terms, being a Democrat is different or better than being a Republican?

After decades of investing myself in the political process as the only way to bring about progress, I'm increasingly becoming disillusioned and disgusted by politics in America. I'm very, very close to simply giving up not only on the Democrats but on politics itself. It seems that without fundamental changes in the way campaigns are financed and conducted (something that's not going to happen in my lifetime) political engagement is futile.
___________________________

Posted by: Aris on December 9, 2007 at 2:02 PM | PERMALINK

Good for Harman? What would the difference be from making an genuine but impotent gesture and covering your ass by writing a letter of protest? Either of those could be contrasted fairly clearly with, you know, oversight...

Posted by: Justaguy on December 9, 2007 at 2:06 PM | PERMALINK

extremely damning.

but why on earth are we hearing this now? And not during any other waterboarding flashpoint of the past two years? Like during Mukasey's confirmation hearings??

Despite the WaPo's use of "U.S. officials" and "various officials," this is so obviously CIA cya, and it seems to be happening now because they specifically SAVED this information to leak WHEN (not if) the country discovered the existence of and destruction of the interrogation tapes. That, I would argue, casts a damning light on the sources of this report as well.

Posted by: along on December 9, 2007 at 2:06 PM | PERMALINK

Aris, I'm right there with you. I wonder what's the point of voting for the opposition party when it doesn't oppose anything.

Even war crimes.

Posted by: Old Hat on December 9, 2007 at 2:07 PM | PERMALINK

If writing CYA letters is the extent of Harman's objections, it's hard to laud her for it. What evidence do we have that she did anything significant to put an end to torture?

"Harman did a helluva lot more". That's like saying a teaspoon holds a helluva lot more water than a thimble.

Posted by: Jake on December 9, 2007 at 2:07 PM | PERMALINK

"It's fair to note, though, that a lot of people were behaving in a demented fashion at that point."

Matt - I don't think you really believe your own argument. I certainly don't agree with it. Times of crises are exactly when ethics (and constitutional principles) become most important. I don't give the Dems a pass, particularly after it appears to me they've been less than forthcoming about their knowledge of torture since the beginning. And yes, Harman did the right thing if she didn't want to be a real whistleblower and report what she knew to the press. I'm going to reserve judgment, though, until this story plays out more.

Posted by: nepeta on December 9, 2007 at 2:13 PM | PERMALINK

What is shocking is what Harman et al. did not do:

did not get an independent evaluation of what was and was not torture;

did not go on record (within the confidentiality regime) to oppose torture;

did not enquire further over the years as to whether the interrogation processes were being reviewed for efficacy, much less legality.

Harman was passive. Good she got tossed out of her leadership role. As for the rest of them...

Posted by: Xenos on December 9, 2007 at 2:15 PM | PERMALINK

Well it seems that, once again, the habitually devious within the Executive Branch are lying through their teeth. Can you say, "obstruction of justice"?

Inquiry Sought On CIA Tapes
[Washington Post]

Democratic lawmakers yesterday angrily demanded a Justice Department investigation into the CIA's decision to destroy videotapes of harsh interrogation tactics used on two terrorism suspects.

The White House said that President Bush was unaware of the tapes or their destruction until this week, but administration sources acknowledged last night that longtime Bush aide Harriet E. Miers knew of the tapes' existence and told CIA officials that she opposed their destruction.

The Senate intelligence committee also announced the start of its own probe into the destroyed videotapes, said Chairman John D. Rockefeller IV (D-W.Va.). ...

The CIA says the Senate intelligence committee, for example, was first told of plans to destroy the tapes in February 2003 and was then informed during a closed hearing in November 2006 that the destruction had been carried out.

But Rockefeller said his panel "has located no record of either being informed of the 2003 CIA decision or being notified late last year of the tapes having being destroyed." A review of a transcript of the November 2006 hearing also makes no mention of destroying tapes, Rockefeller said.

On the House side, Rep. Jane Harman (Calif.), who was previously the ranking Democrat on the House intelligence committee, said she warned the CIA's general counsel after a classified briefing in 2003 not to destroy any videotapes related to the agency's "enhanced interrogation program."

CIA officials said the agency never turned over the videotapes to the Sept. 11 commission because the panel did not specifically request them. But several members and staffers, including the panel's Republican co-chairman, disputed that claim yesterday and said the CIA's failure to disclose the tapes was in defiance of commission demands. ...

[Now what does this tell you about the deliberate obfuscation effort apparent in the currently cited article? Yet another intentional misdirection?? Ah, the "joys" of government-sponsored "perception management".]
.

Posted by: Poilu on December 9, 2007 at 2:17 PM | PERMALINK

This is effectively diverting my attention from the destroyed torture tapes. At the very least, I can wholeheartedly endorse the notion "The Democrats do it too."

That solves everything.

Posted by: absent observer on December 9, 2007 at 2:20 PM | PERMALINK

Why don't democrats do moral outrage?

Why don't democrats use some of those liberals in congress to shout some crazy peacenik ideas then caucus behind those proclamations? Electoral politics would be a lot more favorable to democrats if they took political rhetoric seriously.

Posted by: A different matt on December 9, 2007 at 2:24 PM | PERMALINK

nepeta says:

"I don't think you really believe your own argument."

I suppose not. I do think, in fact, that there will be a reckoning for all this, and it won't be pretty.

Posted by: MattF on December 9, 2007 at 2:27 PM | PERMALINK

Whatever else you can say, it appears that Harman did a helluva lot more about this than anyone else.

And all Harman did was write a letter? That's not saying much.

Posted by: AJ on December 9, 2007 at 2:28 PM | PERMALINK

Kevin says: You may think that congressional leaders ought to jeopardize their careers and risk jail in order to publicly protest stuff like this, but, sadly, in the real world that's not in the cards.

Actually, that's not true. We have seen profiles in courage in the past, just not from the current disappointing bunch. Have our aspirations and our belief in democratic ideals really fallen so low that we don't demand that our leaders act heroically?

OK, don't answer that one. But still, the common argument on the Internet today that these people would have been committing political suicide if they spoke out is just plain offensive. What's the worse act, political suicide or standing by silently as American ideals are savaged?

Posted by: Walter Crockett on December 9, 2007 at 2:30 PM | PERMALINK

I do not recall the oath of office containing an exception to upholding the constitution if doing so is political suicide.

Posted by: Xenos on December 9, 2007 at 2:33 PM | PERMALINK

Really, Kevin, when war crimes (and violations of US criminal law) are being committed, and you're one of the few people who knows about it, I think writing a letter that you know will have no effect is not really something to be cheered. "I was only following orders -- but I wasn't happy about it."

Posted by: Alan in SF on December 9, 2007 at 2:39 PM | PERMALINK

If a tree falls in the forest and nobody's around, does it make a sound?

If Jane Harman writes a secret letter, does it have any effect?

Posted by: Jane on December 9, 2007 at 2:42 PM | PERMALINK

they are either complicit or they are cowards. those are the choices. they have profoundly betrayed their oath to defend and protect the constitution of the united states and observe its laws and treaties. they are complicit in the degradation and dishonor brought upon this country by their gutless and craven (in)actions that have allowed kidnapping, rape and torture to become instruments of u.s. foreign policy.

their acquiesence assured the depraved crimes at abu ghraib.

they must be held accountable for their complicity in crimes against humanity. but since this is no longer a nation that recognizes the rule of law, that option is out.

i despise every last one of them and hope they burn in hell for the grotesque and degenerate behavior that has so befouled this nation's former moral authority.

heckuva job, nancy.

Posted by: linda on December 9, 2007 at 2:44 PM | PERMALINK

Um. "Helluva"? A sternly-worded classified letter? Yes, Harman did more than the rest, but God Damn!


Posted by: anonymous on December 9, 2007 at 2:44 PM | PERMALINK

The Constitution specifies in Article VI, clause 3:

"The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States."

For other officials, including members of Congress, it specifies they "shall be bound by Oath or Affirmation to support this constitution." At the start of each new U.S. Congress, in January of every odd-numbered year, those newly elected or re-elected Congressmen - the entire House of Representatives and one-third of the Senate - must recite an oath:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.

Posted by: anonymous on December 9, 2007 at 2:46 PM | PERMALINK

Has anybody noticed how right-wing the Washington Post has become since Katherine Graham died???

It used to be the paper of record for reporting on political issues...now its just as biased as Fox News.

I can't think of a single political issue over the last few years in which the Post's reporting has not had a decidedly anti-Democratic and pro-Republican slant.

Posted by: mfw13 on December 9, 2007 at 2:51 PM | PERMALINK

Did anyone else read the whole article? The part about the secrecy oaths they sign? Would you rather have your Democratic politicians rotting away in jail cells right now for violating that oath, and still have the information under wraps because the administration invoked the "state secrets" clause? Or in the majority? Like nepeta, I will wait and see how this plays out before I scream for anyones head to be presented on a platter.

Posted by: another anonymous on December 9, 2007 at 2:59 PM | PERMALINK

Kevin Drum deliberately prefaces this piece with the following strong caveat:

"The sources for this story are so obviously intent on discrediting congressional Democrats that it's hard to know whether to take it at face value ..."

Yet he nevertheless inexplicably "concludes", based on this inherently dubious article:

"Bottom line: it looks like they all knew about it ... and it looks like most of them didn't have a problem with it. Another great day for the Republic."

Say, WHAT??? Tell me, class: What's wrong with this picture?

One could suffer a nasty case of "whiplash" from such a radical shift in credulousness, Kevin. Deriving such an unequivical "conclusion" from a source you yourself declare doubtful is a non sequitur of unparalleled prominence!

Can you explain this.seeming metamorphosis? Did you decide within the very process of writing that those questionable claims could, for some reason, be taken "at face value"? If so, what exactly changed your mind?
.

Posted by: Poilu on December 9, 2007 at 3:05 PM | PERMALINK

Like I said, "if this turns out to be true...." But presumably, if one of our representatives had disclosed this, than while they might be rotting in jail, the torture would have been disclosed, and may have been stopped before it ever started.

Also, it's not clear the alternative to silence is jail. I think these folks have plenty of ways of either leaking the information, publically disclosing it, and/or pressuring the powers that be.

Posted by: jerry on December 9, 2007 at 3:06 PM | PERMALINK

I have not one word of praise for Harman or anyone involved in these briefings. A secret letter is nothing but CYA.

And if that's the best we can expect, I guess we should give up hope now and move to some country where leaders respect the rule of law and uphold the Geneva conventions. (Of course, with the corrupting influence of the U.S., the remaining number of those countries is small. Who hasn't participated in the U.S.'s renditions and secret prisons?)

This kind of spineless, contemptible passivity has degraded the US Congress, as well as the rest of the American system of government.

Will we ever have real leaders in this country again? What ever happened to their moral compass? Did they ever have one?

Posted by: FrancesLee on December 9, 2007 at 3:06 PM | PERMALINK

Y'all oughta go get a brown paper lunch bag and just BREATHE awhile. Have you NO idea how a Congressional briefing regarding classified material is done?

A program such as "enhanced interrogation" would necessarily be SCI or Special Access, even in general terms. There would NOT have been any disclosure to Congress of anything remotely beyond the letter of the law or of our treaty obligations.

So, no, the Speaker was not told that we were going to drown AQ guys and drag their heads out of the water long enough to ask 'em: "What's the capitol of Maryland, tough guy?"

Secrets are not kept by telling Congress about 'em.

And, in fact, you guys don't understand how Congressional critics of classified programs deal with their Constitutional right to be informed: THEY DON'T GO TO THE CLASSIFIED BRIEFINGS.

This was standard practice during the Nicaraguan contra mess, in which Congressional players in the debate often refused to go to classified briefings so as to avoid being accused of leaking secrets: if you're not told in a classified briefing, they can accuse of ignorance but not of espionage when you tell the truth on 'em.

AND your colleagues who DID get the classified briefing can judge who was telling the truth: which is why the Boland amendment was enacted -- the Congress didn't believe Reagan.

Man, the Bush folks dangled the smallest bit of sushi and y'all swallowed it up to the ferrule.

Posted by: theAmericanist on December 9, 2007 at 3:19 PM | PERMALINK

Has anybody noticed how right-wing the Washington Post has become since Katherine Graham died???

Company paper in a one-industry town.

Anyone who ever lived in a town like Jay, or Millinocket, knows what that's like

Posted by: Davis X. Machina on December 9, 2007 at 3:23 PM | PERMALINK

The news is now "Dem in Congress Knew", not "BuschCo Destroyed Evidence of War Crimes".

Mission accomplished. Someone in the Cheneybunker earned their Christmas bonus this year.

Posted by: Davis X. Machina on December 9, 2007 at 3:25 PM | PERMALINK

" You may think that congressional leaders ought to jeopardize their careers and risk jail in order to publicly protest stuff like this, but, sadly, in the real world that's not in the cards."

Kevin, surely you're better than this. While the final clause of this sentence is, sadly, true, it is absolutely not cause to congratulate one of the congressional leaders for taking an extremely weak, ineffectual and self-serving action.

There are examples throughout history where public officials opposed goverment illegality/immortality and by doing so gave up not only their position or freedom, but their life. From this perspective, Jane's looking like a pissant to me.

We're talking about torture here--war crimes and the rot from within of our political culture and institutions.

Congress members take an oath to uphold and defend the Constitution. Nowhere in that oath is a caveat relieving them from responsiblility when faced with inconvenience or personal loss.

Yeah, I'm naive about a lot of things, but I know enough history to know that Jane Harman is no credit to the human race. Where are the Dietrich Bonhoeffers when you need them.

Posted by: jm on December 9, 2007 at 3:51 PM | PERMALINK

Wow. Talk about a circular firing squad -- with rubber bullets, no less.

Posted by: theAmericanist on December 9, 2007 at 4:06 PM | PERMALINK

Where are the Dietrich Bonhoeffers when you need them.

Martyred. So you would rather see the Democrats who were briefed be imprisoned, charged with treason (for violating their secrecy oaths) and hanged than to have them play the game and take back the majority?

Think for a minute folks - please, for the love of the Republic - think. The NIE and the torture tapes story came to light. So the administration leaked this to Freddy the Freeloader and it's page one on Sunday - and you all are jumping at the shadow, flailing wildly and demanding resignations, while the craven bastards sit back and laugh at you for doing their dirty work for them.

Way to go.

Posted by: another anonymous on December 9, 2007 at 4:17 PM | PERMALINK

Smells like a little distraction to get the Dems in the headlines and in trouble with the activists. Maybe so or maybe not. After all the war was the Dems fault, or so Mr. Rove says. Thing is that in the run up to the election the spotlight should be on the brutal, amoral and antidemocratic Republicans, the war in Iraq, and the kick in the teeth the Republicans have been delivering the Middle Class for well over three decades now.

Do I wish we had Dems with more guts? You bet. I also wish they were less neoliberal and less neoimperial. But they are loads better than the current authoritarian incarnation of the Republican party.

Right when you are going into battle it is best not to start shooting at the leadership no matter their limitations. If these were normal times it would be fine to go against the party leadership, but the stakes are too high.

Posted by: bellumregio on December 9, 2007 at 4:27 PM | PERMALINK

from the *post*:
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.

so what were the 'descriptions' like? like 'a wet washrag over the face' as the the right-wingers say, or 'a little thing we do that doesn't cause death or destruction of vital organs' as the c.i.a. would probably put it? i would guess the descriptions were pretty sanitized.

not that anyone has covered themselves with glory here - far from it. but it's not like they showed the videotapes, i'm sure.

your pal,
blake

Posted by: blake on December 9, 2007 at 4:31 PM | PERMALINK

Here's what I came up with after breathing into a brown paper bag for a few minutes:

The annals of war stories are rife with tales of brave GIs throwing themselves on the grenade to save their comrades. Too bad a supposed "defender of the constitution" can't muster anything even close to the bravery of a common dogface when the very survival of the republic is on the line.

Before breathing into the brown paper bag all I wanted to say was "fuck you".

Posted by: DFH on December 9, 2007 at 4:31 PM | PERMALINK

This is frankly too easy to resolve.

Speaker Pelosi should call for the briefing that she received be declassified and published.

It's on the table; it has been leaked by the Executive branch that the briefing was conducted. The Executive says it does not torture, so they should have no fear of this being public.

Pelosi faces reelection next year - her constituents should be able to see this for themselves, and judge the time she received it, and the threats she believed the country faced at the time, before voting.

Blackmail loses its effectiveness in daylight.

And Ms. Pelosi? If they don't declassify it, you need to investigate wherever it leads. Put impeachment back on the table. We know that people have died under the question - investigate it.

Posted by: Wapiti on December 9, 2007 at 4:33 PM | PERMALINK

Americanist, you said: There would NOT have been any disclosure to Congress of anything remotely beyond the letter of the law or of our treaty obligations.

OK -- but you weren't there, and now this WaPo story claims otherwise. If their claims are untrue, no doubt all those who were at the briefings will cry foul. If they don't, doesn't that invalidate your point?

Posted by: JS on December 9, 2007 at 4:34 PM | PERMALINK

What constitutional (or other) purpose is served when congressional leaders are briefed under confidentiality restrictions? If the only way they can voice their objections is to write confidential letters that will be ignored, is this advice and consent? If not, what is it?

Any constitutional lawyers here?

Posted by: JS on December 9, 2007 at 4:37 PM | PERMALINK

blake - I agree 100%.

When they briefed on waterboarding, did the CIA tell the Congresspersons that this was in fact "the water cure", and Japanese officers were executed after WWII for using this technique?

Posted by: Wapiti on December 9, 2007 at 4:37 PM | PERMALINK

Reading the reactions, it seems that a Republican said all the Democrats fully understood what was going on, one of the Democrats seems to recall that "enhanced interrogations" were mentioned but another denies hearing about "waterboarding". A third Democrat filed a letter in protest.

I agree with some other posters. This is a very subtle Republican smear. It implies that the Democrats were aware of and supported the use of torture at the same time that the Republicans still deny that anyone was using torture or that the White House knew anything about it.

Reading between the lines, it seems that the Congressmen were simply told that everything the White House was doing was effective but legal and to ask no further questions, and the Democrats simply went along with, and that is something we already knew.

Posted by: Splitting Image on December 9, 2007 at 4:43 PM | PERMALINK

"What ever happened to their moral compass?"
Our political leadership selection process has weeded them all out.

The real question is what should we do now. Starting with the current situation. Recriminations for past weakness may be in order if they make such behavior less likely in the future. We are likely the target of a deliberate attempt to sow discord among our ranks. We have to be careful how we respond.

Our representatives live in glass houses. But we still need them to throw stones when it is necessary.

Posted by: bigTom on December 9, 2007 at 4:54 PM | PERMALINK

Er, did any of the commenters arguing that this story is nothing but a smear notice that Walter Pincus contributed to the article? Granted, that's on page 3, so you do have to read all the way to the end.

Anyhow, crazy talk, right?

Just as crazy as the idea that Pelosi would get FISA, at midnight, right before blowing town for vacation.

Oh, wait...

Posted by: lambert strether on December 9, 2007 at 4:56 PM | PERMALINK

Good on Jane Harman. Bad on Nancy Pelosi. What a boob! Sorry, I couldn't resist.

Look, who said we had to repeal the Bill of Rights because men with $1.98 boxcutters hijack four airplanes? 9-11 was a time for introspection and reflection - not blind, barbaric revenge. Anyone with a conscience, conservative or liberal, should have stood up in outrage, upon being told such barbaric behavior was being done in the name of the United States. How are we morally superior to the terrorists, if we engage in shit like this?

Posted by: The Conservative Deflator on December 9, 2007 at 5:01 PM | PERMALINK

"So you would rather see the Democrats who were briefed be imprisoned, charged with treason (for violating their secrecy oaths) and hanged than to have them play the game and take back the majority?"

And what, pray tell, will this batch of Democrats do when they take back the majority? Wait a minute...don't the Democrats already have the majority? Yeah, I know, based on their behavior over the past year it's an easy fact to forget.

Let's assume you're referring to a filibuster-proof super majority in Congress and possession of the White House. Then what? There'll be lillies in the field and peace in the valley, no doubt. Who's not thinking now?

Regardless of who wins the next election, we will not be leaving Iraq anytime within this decade, we will not be reducing our military spending in any significant way and the imperial aims of American foreign policy will not be changed.

Back to your question. It seems clear to me that laws have been broken. Toture has been committed under the aegis of the American government. Torture is prohibited by the Geneva Convention. Last time I checked, a treaty signed by an American president and ratified by an American senate is American law. Presto chango, someone is a yet to be convicted felon. Someone deserves to go to jail. It's not clear that any of the congress members in question broke any law themselves. However, abrogation of oversight responsibilities in the face of clearly illegal behavior constitutes a violation of the congressional oath of office, and so is an impeachable offense. If not jail, these scum deserve loss of position and public humiliation.

Democratic Party complaisance with immoral and illegal behavior is a major component in the rot at the heart of our polity. They deserve contempt and ridicule, not support.

Under our system of government an oligrachic duopoly seems to be the de facto steady state condition. The ruling class will rule. They have the motive, they have the means, they have the opportunity. Electing "more, better" Democrats isn't going to change that. We can, however, push back and limit the perfidy in a not completely ineffectual way. It starts by holding our own representatives accountable.

Posted by: jm on December 9, 2007 at 5:08 PM | PERMALINK

I call that damming with faint praise of Harman. I don't believe there was nothing she could have done or said at the time. I think she was more afraid of the political repercussions than any legal repercussions. Shame on all the others.

Posted by: jussumbody on December 9, 2007 at 6:07 PM | PERMALINK

As many have mentioned here, this seems to me like a subtle distraction piece. It's definitely in the manner of the Bush operation (put out a story with many anonymous sources that smears the opponents, or at least makes them look no worse than you) so you can go on doing whatever nefarious thing you were doing before.

I'd also like to point out that the only named source is Porter Goss, who is hardly an unbiased source. Also, I'd like to echo blake and TheAmericanist in pointing out that the descriptions of "enhanced interrogation" were probably sanitized to the point that the techniques seemed tame. I mean really, you expect the CIA to proudly proclaim their adoption of a technique that Japanese officer after World War II were executed for? It's like the crooked CIA chief put it in "The Bourne Supremacy": if the CIA told Congress all the nasty things they really do, Congress wouldn't pay for it.

Posted by: Harkov311 on December 9, 2007 at 6:16 PM | PERMALINK

Something similar happened on the domestic spying issue. This is Senator Rockefeller's statement on that:

The record needs to be set clear that the Administration never afforded members briefed on the program an opportunity to either approve or disapprove the NSA program. The limited members who were told of the program were prohibited by the Administration from sharing any information about it with our colleagues, including other members of the Intelligence Committees.

At the time, I expressed my concerns to Vice President Cheney that the limited information provided to Congress was so overly restricted that it prevented members of Congress from conducting meaningful oversight of the legal and operational aspects of the program.

These concerns were never addressed, and I was prohibited from sharing my views with my colleagues.

The above, as well as Rocjefeller's letter to Cheney, are here.

So they brief a few senators and members of congress who are not allowed to discuss what they heard (even with colleagues) and later they use these briefings to say "but Congress knew"? And to imply that Congress approved?

Posted by: JS on December 9, 2007 at 6:18 PM | PERMALINK

Harman (and the rest of them) could have gone to the "police." That is, they could have demanded that John Ashcroft (or his stand-in, depending on the timing) appoint a special prosecutor. They could have also demanded that the CIA's attorney refer individuals to the DOJ (and FBI) for investigation and possible prosecution.

There is no way any of the Democrats in Congress would be in any legal jeopardy for referring illegal acts to the Justice Department. (And there are ways to do that while maintaining secrecy anyway.) Secrecy does not trump illegality.

But that would have taken a modest amount of political courage, something still in short supply within the Democratic Party. Heckuva job, Nancy.

Posted by: Timothy on December 9, 2007 at 6:21 PM | PERMALINK

And I am not going to be one of those people who says we have to stand behind our Dem leaders. At the very minimum they should be resigning from their leadership and committee positions so that moral people willing to hold this administration to account can take their places. The upshot of this scandal is that we now no the reasons impeachment has been taken off the table, and every single hearing by the has resulted in nothing more than testy letters asking the administration to please comply, with no realistic expectation that that request will be complied with. They are calculating that they can sweep into power by being less complicit in the Bush outrages than the Republicans. Now, not later, is the time to shake things up for the Dem leadership as we go into the primaries, because soon enough we will be stuck with no choices but to support the lesser of two evils.

Posted by: jussumbody on December 9, 2007 at 6:30 PM | PERMALINK

Jake: "If writing CYA letters is the extent of Harman's objections, it's hard to laud her for it. What evidence do we have that she did anything significant to put an end to torture?"

She was the ranking minority member on the House Intelligence Committee, in a Congress where the Republican majority did everything it could to marginalize the opposition, inlcuding not disclosing information.

What exactly did you expect Rep. Harman to do -- storm the CIA offices with her staff, occupy the Director's office and hold him hostage?

Perhaps more appropriately, what did you and I do during that time to support her efforts -- that is, besides bitching on a blog?

It's about time that we as citizens do something to support the Democrats' efforts, instead of simply threatening to withhold our votes in the next election. Perhaps if more of us took the time to let them know that we have their backs, they might develop more of a backbone.

Posted by: Donald from Hawaii on December 9, 2007 at 7:13 PM | PERMALINK

Digby points out that speeches on the floor are exempt from prosecution. This bizarre idea that classification trumps policy is getting absolutely over the top. The question of whether someone can be tortured or not is not a question that belongs behind any kind of classification wall. And even more to the point, the question of whether someone violated the law or not is no classifiable.

Explicitly so, if I recall correctly. Classifying activity to avoid criminal charges is illegal.

Posted by: jayackroyd on December 9, 2007 at 7:18 PM | PERMALINK

Bravo, jayackroyd. Excellent information...and exactly to the point.

Posted by: nepeta on December 9, 2007 at 7:34 PM | PERMALINK

"What exactly did you expect Rep. Harman to do -- storm the CIA offices with her staff, occupy the Director's office and hold him hostage?"

She could have stood on the House floor and told the world she had knowledge of illegal and reprehensible actions taken by government employees at the the behest of the president of the United States and urged her colleagues to investigate the president's extra legal behavior [one can investigate and debate an executive order to commit a crime without divulging any state secrets pertaining to the crime itself].

See, it's really not all that complicated. Harman and her ilk have little conscience and no courage.

Posted by: jm on December 9, 2007 at 8:10 PM | PERMALINK

I would like to know one more key detail: which members actually "approved" of it, as opposed to simply not talking about it because it was "still classified". The original Post article -- which, as Kevin says, was clearly triggered by someone with a grudge against the Congressional Dems -- is nevertheless deadly, especially given the confirmation from one of Pelosi's aides that she didn't object to the practice at the time, and Sen. Bob Graham's straight-faced statement that he "doesn't remember" any such briefings (this from the guy who's notorious for recording every single event that happens in his life in a personal diary on a minute-by-minute basis). But -- as the Post says -- besides Rep. Harman actually writing a protest letter, "[Sen.] Rockefeller also declined to talk about the briefings, but the West Virginia Democrat's public statements show him leading the push in 2005 for expanded congressional oversight and an investigation of CIA interrogation practices." And I'd also like to know just which members actually "specifically asked if the methods were tough enough", given that two solidly pro-Bush Republicans -- Porter Goss and Pat Roberts -- were among the members informed.

Still, this little revelation wrecks any attempt to use the torture issue on a simple "Republicans-bad, Democrats-good" basis, or to dispose of it with simple moralistic arguments -- it confirms that a very large number of people will always be tempted to fall back on it whenever they think the country is in "serious danger", as was still the case back in 2002. (No doubt a lot of Democrats at the time also lived in political terror of being accused of being "soft on terror" if they came out against torture at all in 2002, this being the period when Bush was riding highest politically on the issue and we were indeed all still keeping one ear cocked for the next explosion.) And so it confirms that, to get rid of it, we are going to have to emphasize that the MORAL arguments against torture can't be separated from the STRATEGIC arguments against it: that it does no good and in fact is actually counterproductive militarily. Do any of the Democratic candidates have the brains to do this? (And what does this news do to Pelosi's position as House leader?)

Posted by: Bruce Moomaw on December 9, 2007 at 8:21 PM | PERMALINK

One more time: WOW -- once in a blue moon I think maybe I'm too harsh in my judgment of the utter stoooopidity y'all are capable of, but then: not so much.

"If their claims are untrue, no doubt all those who were at the briefings will cry foul. "

Umm.... they can't. When someone who is cleared for it is presented with classified material in an authorized manner, THEY CAN NOT REVEAL IT. Not even somebody else leaks a lie about it.

What part of this is unclear to you? Have you NEVER had a position of confidential responsibility in your life?

SCI refers to "secret compartmentalized information". That means information which is never shared in ALL its parts to any single person, and whose parts are carefully parsed so that nobody who knows enough of ANY part, knows anything useful about any other part.

In fact, folks are selected to receive access to SCI, precisely because they are properly incurious about stuff they don't need to know: that includes members of Congress. (Somebody ask about "the geometry of the test condition", if you want to know what that means.)

"Special access" refers to information that only folks with some damned good OPERATIONAL reason to know, ever hear about.

No member of Congress would EVER have qualified for the compartmentalized information that we were torturing prisoners. That is simply not the way classification works. Being briefed that Bush was gonna 'enhance interrogations', sure. But exactly HOW? Nuh-uh. They're LEGISLATORS, you nitwits.

Remember -- classification is a wholly EXECUTIVE function. There are members of Congress who are cleared for ANY level of classified material -- but that's the whole point of SCI: it's not about how CLEARED you are, but whether as an operational matter you have any reason to know any specific piece of information.

No member of Congress had any operational reason to know precisely how we were doing "enhanced interrogation". Psst -- they don't get to know the nuke codes, either.

So no, they were NOT told that we were dunking AQ prisoners' heads underwater and then demanding that they tell us what the is the capitol of Maryland.

Ah... but you guys are too stooopid not to understand that classification serves an EXECUTIVE function, too self-righteous to remember Civics 101.

All Bush has to do is wave the "but we TOLD them... something" flag, and you will LEAP to blame folks who actually win elections, who are thus tainted by the slightest hint of political competence: and YOU guys will happily help Bush do the fast shuffle.

Honest, you guys couldn't be any dumber if you took lessons.

Posted by: theAmericanist on December 9, 2007 at 9:15 PM | PERMALINK

The whole FISA thing already established the broad belief that those outside America have no rights.

We've already determined the value of "furriners". Why is anybody shocked by this? I'll bet most of you helped make it happen by supporting the warrentless wiretapping of foreigners.

Posted by: Karmakin on December 9, 2007 at 9:23 PM | PERMALINK

I'm not happy with the Dems on this, but I'm far less happy with the Bush administration and the Republicans. As others have noted, this could well be mostly a trap or a distraction set up by the Bush administration: inform a few senators & representatives via a toned-down 'informational presentation' and then scare them about the GWOT and national security issues and threaten reprisals for leaks, so as soon as the bad news gets out Bush can say that some senior democrats knew about the water-boarding and approved it.

However, even if the democrats just rolled over like patsies, for those not seeing a difference between the parties, I'd suggest that it is highly unlikely that either Gore or Kerry would have got us involved in such a mess in Iraq had they been president, nor would they have instituted torture as national policy, nor would they be pulling Bush-type crap to get around laws, treaties, and ethics and to dismantle all the protections we would usually have against this sort of malfeasance. With even a little additional moral stiffening from other institutions (such as an independent AG and Justice Department that actually care about following the law, a judiciary that was willing to hear cases and more willing to go against the president, or a media that has not been cowed and purchased into submission), the democrats involved might have found some spine to resist such an idea, if resistance was even needed in the first place.

Posted by: N.Wells on December 9, 2007 at 9:25 PM | PERMALINK

Americanist - Your argument is too cute by half.
If Harman didn't get a classified briefing about 'enhanced interrogation' in some detail then why would she have written a critical letter in response? Even if congress critters are unable to say anything about what they were told on a classified basis, they certainly are allowed to respond about what they were NOT told, right?
For example, Rockefeller explains "In the last Senate Intelligence Committee meeting we did not discuss the weather, Saudi Arabia or our favorite desserts."

Posted by: nepeta on December 9, 2007 at 9:30 PM | PERMALINK

Members of Congress take the following oath:

"I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter."

According to Harman,

"When you serve on intelligence committee you sign a second oath -- one of secrecy," she said. "I was briefed, but the information was closely held to just the Gang of Four. I was not free to disclose anything."

So what happens when these two oaths conflict? What if you discover in the process of doing your duties as a member of the intelligence committee that someone in the administration -- maybe even the President -- is subverting the Constitution? Which oath takes precedence?

Right, the first one.

Posted by: Jake on December 9, 2007 at 9:38 PM | PERMALINK

Jake:We're talking about foreigners. The Constitution DOES NOT APPLY. Maybe the Geneva Convention, but I don't think that's part of the oath.

Posted by: Karmakin on December 9, 2007 at 9:42 PM | PERMALINK

Well Americanist thank god your elephantine intelligence makes up for the stoopidity of so many of us here. Now can you explain whether this is just bad reporting or, if not, why it doesn't contradict what you are saying:

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.

Are you saying that the Post -- or its sources -- got this wrong? Or were the members of congress told about waterboarding -- contrary to what you believe possible?

Also, you make a big deal about how those who go to such confidential briefings would never disclose what they heard there. So what about this:

A congressional source familiar with Pelosi's position on the matter said the California lawmaker did recall discussions about enhanced interrogation. The source said Pelosi recalls that techniques described by the CIA were still in the planning stage — they had been designed and cleared with agency lawyers but not yet put in practice — and acknowledged that Pelosi did not raise objections at the time.

Is this just journalists making stuff up? Or did Pelosi talk about stuf you claim she never would?


Posted by: JS on December 9, 2007 at 9:45 PM | PERMALINK

And I repeat my earlier question: What is the purpose of such briefings if those who attend are not allowed to do anything with the information they receive -- not even talk to their colleagues about it? How do they help the governance of the country?

If the only purpose is -- as it appears to be -- that the Administration can later say "but Congress was briefed" (implying that Congress approved) then this intself merits a lot of screaming on the part of Congress -- at the very least. So far though, nary a peep. Maybe tomorrow.

Posted by: JS on December 9, 2007 at 9:53 PM | PERMALINK

What do you think upholding the Constitution means, Karmakin? It means upholding the law, including treaties. Treaties are even singled out in the Constitution for special attention. As the Supremacy Clause of Article 6 states:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

The Geneva Convention is a ratified and signed treaty, which means it has the force of law. If the President violates a treaty, he is violating the law, and thereby the Constitution. Any member of Congress who discovers this is bound by his or her oath to defend the Constitution.

Posted by: Jake on December 9, 2007 at 9:54 PM | PERMALINK

What JS said and what Americanist said.

I'm not convinced that Pelosi *isn't* gung ho on torture, but we've all seen this particular drama before with surveillance briefings. In a few days the news will filter out that the briefings were somewhat less than complete in describing everything that goes on. By then story's job, control of news coverage will be finished.

Posted by: Boronx on December 9, 2007 at 9:58 PM | PERMALINK

Boronx - You might be right. But Pelosi's rather complete statement through a spokesperson about 'techniques designed and cleared with agency lawyers' is going to be pretty hard to wiggle out of, no?

Posted by: nepeta on December 9, 2007 at 10:19 PM | PERMALINK

Take a look at Glenn Greenwald’s revelation ( http://www.salon.com/opinion/greenwald/2007/12/09/democrats ) that Jay Rockefeller and Pelosi (through her selection of Silvestre Reyes) are even more intimately entangled in the torture scandal than the new Post article makes out.

Just lovely. Well, the fact that we can no longer by any stretch of the imagination utilize the torture issue in a Democrat-vs.-Republican political morality play does not remove us of our obligation to get rid of it—and the only effective way to get rid of it is clearly to purge the public, once and for all, of the idea that there are anything more than extremely rare situations in which it might be even STRATEGICALLY worthwhile. Until we do that, the torture advocates will now have a new, tremendously powerful political argument to the voters that we should retain it (as Bryan Preston is already eagerly showing us over at "Hot Air"). The case for the Dems to put some anti-torture military man (Sen. Webb?) on their ticket is now even stronger -- in fact, at this point I’d say it’s damn near imperative (which naturally means that they won’t be smart enough to do it). Once again, there’s an excellent chance that the country will end up acquiescing in frequent torture, and bewailing that fact only decades later, when it’s safely too late to actually punish anyone for it. (See “My Lai, Massacre of”.)

Posted by: Bruce Moomaw on December 9, 2007 at 10:20 PM | PERMALINK

The utterly brilliant theAmericanist writes:

When someone who is cleared for it is presented with classified material in an authorized manner, THEY CAN NOT REVEAL IT. Not even somebody else leaks a lie about it.

Er, no. This situation is covered by the speech and debate clause (Article I, section 6 of the Constitution).

And for those who are claiming that the story is a pure Republican disinformation ploy -- Walter Pincus, who has a lot of credibility, is listed as a contributor. Of course, to find that out, you have to read all the way to the end....

NOTE It certainly took the trolls a long time to get rolling on this one. Waiting on a conference call?

Posted by: lambert strether on December 9, 2007 at 10:21 PM | PERMALINK

Nepeta, I found that bit in the article, but the source was anonymous.

Posted by: Boronx on December 9, 2007 at 10:38 PM | PERMALINK

The story is what it is, lambert, the question is whether it's as damning as so many make out.

Posted by: Boronx on December 9, 2007 at 10:40 PM | PERMALINK

theAmericanist SHOUTING at all the STOOPID RUBES who comment here, all the while demonstrating an inability to understand LOGIC has got to be the highlight of the last few day's comments sections.

Posted by: scudbucket on December 9, 2007 at 11:01 PM | PERMALINK

"Off the Table" Quid pro Quo for becoming Speaker of the House. Nice.

Posted by: Sparko on December 10, 2007 at 12:02 AM | PERMALINK

"With one known exception, no formal objections were raised..."

Isn't that a really screwed up way of saying "An official objection was raized..."? Or would such a straight forward statement run counter to the impression the Post writer was trying to foist onto their readers?

Posted by: Robert Earle on December 10, 2007 at 12:41 AM | PERMALINK

NANCY PELOSI SEEMS LIKE A COMPLETE CHAMELEON WHO SHOULD BE RUN OUT OF WASHINGTON ON A RAIL- tell me again, just what are the differences between Congressional republicans and Democrats?

Posted by: oldtimer on December 10, 2007 at 12:52 AM | PERMALINK


ABC News: Thursday, December 29, 2005. 12:35pm (AEDT)
CIA renditions began under Clinton: agent
The US Central Intelligence Agency's (CIA) controversial "rendition" program was launched under US president Bill Clinton, a former US counter-terrorism agent has told a German newspaper.

Michael Scheuer, a 22-year veteran of the CIA who resigned from the agency in 2004, has told Die Zeit that the US administration had been looking in the mid-1990s for a way to combat the terrorist threat and circumvent the cumbersome US legal system.

"President Clinton, his national security adviser Sandy Berger and his terrorism adviser Richard Clark ordered the CIA in the autumn of 1995 to destroy Al Qaeda," Mr Scheuer said.

"We asked the president what we should do with the people we capture. Clinton said 'That's up to you'."

CBS News: March 6, 2005
"The option of not doing something is extraordinarily dangerous to the American people," says Michael Scheuer, who until three months ago was a senior CIA official in the counterterrorist center. Scheuer created the CIA's Osama bin Laden unit and helped set up the rendition program during the Clinton administration.

"Basically, the National Security Council gave us the mission, take down these cells, dismantle them and take people off the streets so they can't kill Americans," says Scheuer. "They just didn't give us anywhere to take the people after we captured."

So the CIA started taking suspects to Egypt and Jordan. Scheuer says renditions were authorized by Clinton's National Security Council and officials in Congress - and all understood what it meant to send suspects to those countries.

"They don't have the same legal system we have. But we know that going into it," says Scheuer. "And so the idea that we're gonna suddenly throw our hands up like Claude Raines in 'Casablanca' and say, 'I'm shocked that justice in Egypt isn't like it is in Milwaukee,' there's a certain disingenuousness to that."


Posted by: majarosh on December 10, 2007 at 12:53 AM | PERMALINK

Ok, let's impeach Clinton for the extraordinary renditions.

What -- he's no longer in office?

Then I guess we'll have to settle for impeaching Bush.

Posted by: trex on December 10, 2007 at 1:16 AM | PERMALINK

The US Central Intelligence Agency's (CIA) controversial "rendition" program was launched under US president Bill Clinton

So? Who here has defended Clinton for rendering suspects? No one? So what's the point of bringing it up? Thinking that two wrongs (like three lefts) makes a right?

As no one here has made a point that is negated or answered by your charge, I see no point in bringing it up, save petulance.

Posted by: Blue Girl, Red State (aka G.C.) on December 10, 2007 at 1:21 AM | PERMALINK

i seriously doubt they told graham much of anything.

Posted by: english teacher on December 10, 2007 at 3:09 AM | PERMALINK

jm: "[Rep. Harman] could have stood on the House floor and told the world she had knowledge of illegal and reprehensible actions taken by government employees at the the behest of the president ..."

Since you've probably never worked on Capitol Hill, jm, and thus aren't privy to the means and methodology as to how such classified briefings are conducted, I'm going to give you the benefit of the doubt here.

When a member of Congress is granted a security clearance that allows him or her the privilege of access to classified material, they also take an oath to not publicly disclose such material, nor to even divulge its contents to their congressional colleagues. If Rep. Harman ever spoke to other members or went public about this particular issue, she'd be subject to arrest.

Further, given the track record of this administration for playing its cards close to the vest, even with members of their own party, and further given their penchant for misleading and misdirecting Congress and the public, it is entirely plausible that Rep. Harman was never told the exact specifics of what the term "enhanced interrogation" meant -- which, if I might hazard to guess, is probably the case here.

We don't know the contents of Rep. Harman's letter of protest, because that's also been classified, but I would think that her protest was in the form of an admonition for the White House's failure to disclose in detail the exact nature of "enhanced interrogation" and the human subjects upon whom the techniques were being performed.

Again, as I and others stated earlier, the Democrats were in the minority in Congress, and as such were really in no position to demand information or subpoena materials. Only the committee chairs hold such authority. Therefore, given her position as ranking minority member of the House Select Subcommittee on Intelligence, Rep. Harman was never in a legal position to do anything else other than file a protest, which the White House promptly classified.

If people are going to criticize members of Congress -- and Lord knows, there's a lot to be critical about -- then I would also urge them to educate themselves about the legislative process and current congressional organization. Otherwise, we have a lot of people who are doing nothing more than venting their spleen to no real effect, and are thus literally flailing away in the dark, with no real idea as to where to direct their ire or displeasure.

An invaluable reference site to bookmark is THOMAS, the Library of Congress' official website. From here, you can access information about current legislation and download copies of the original legislation and various committee drafts, find out which bills are referred to which committees, whether hearings are scheduled, etc.

Plus, the site provides links to the U.S. House of Representatives and U.S. Senate websites, so you can get contact information about a particular representative or senator, see what committee(s) he or she might be serving on, etc.

A good place to start on this particular issue of "enhanced interro-- oh, Hell, let's just call it for what it is, "Torture" -- is to contact the present chair of the House Permanent Subcommittee on Intelligence is Rep. Silvestrio Reyes (D-El Paso, TX). He can be reached at (202) 225-4831, or by writing to 2433 Rayburn House Office Building, Washington, D.C. 20515-4316.

Also, there are two people to contact in the Senate. First up is Sen. John D. (Jay) Rockefeller IV (D-WV), chair of the Senate Select Committee on Intelligence , who can be reached by phone at (202) 224-6472, or by writing at 531 Hart Senate Office Building, Washington, DC 20510.

Also contact Sen. Joe Biden (D-DE), who chairs the Senate Committee on Foreign Relations. He can be reached at (202) 224-5042, and by writing at 201 Russell Senate Office building, Washington, DC 20510.

Be sure to also contact your own respective congressman and senator to demand congressional hearings on this or any other issue you have concerns about.

I'm turning in for the evening. 'Night, all.

Posted by: Donald from Hawaii on December 10, 2007 at 3:12 AM | PERMALINK

The issue isn't black and white as people suggest. The pressure against disclosing top secret information is huge.

Over the ensuing months, did Pelosi & Harmon try other means short of blabbing to the press to get torture stopped?

Posted by: pj in jesusland on December 10, 2007 at 6:39 AM | PERMALINK

majarosh is correct - renditions started under Bill Clinton. I also doubt they would stop under a Hillary Clinton administration. One more reason not to vote for Hillary. Thanks, majarosh. Let's elect someone for whom freedom and human rights is more than just a campaign slogan.

Peace out.

Posted by: The Conservative Deflator on December 10, 2007 at 7:32 AM | PERMALINK

"You may think that congressional leaders ought to jeopardize their careers and risk jail in order to publicly protest stuff like this, but, sadly, in the real world that's not in the cards." Kevin

It is the job of these congressional leaders to ensure that our intelligence agencies comply with law. The resolution creating the Select Committee on Intelligence states:

"It is further the purpose of this resolution to provide vigilant legislative oversight over the intelligence activities of the United States to assure that such activities are in conformity with the Constitution and laws of the United States."

In the real world shouldn't we expect that these democrats would have strenuously objected to torture? In the real world shouldn't we have expected that these democrats go public if the administration persisted in violating the law?

Sorry, Kevin, but your "real world" admonition is very Joe Klein.

Posted by: thomas c on December 10, 2007 at 8:08 AM | PERMALINK

These briefings seem to carry a Catch 22. As I understand them, they are high security briefings. To me, that means you can't go public about any concerns you might have or you have violated the understanding under which you were briefed. Am I wrong? That's one reason I've never been comfortable with them. They make you complict in acts you may have grave doubts about.

Posted by: Dodger on December 10, 2007 at 8:25 AM | PERMALINK

Lambert, honest: it helps if you know what you're talking about.

"This situation is covered by the speech and debate clause (Article I, section 6 of the Constitution)..." is NOT true.

Kindly cite ANY example that backs up what you imagine is your point. Show us an instance in which a US Representative or Senator was told any classified information and revealed it during floor debate.

EVEN.ONE.FUCKING.TIME.

Well?

In case you don't know how this is done, it is called "evidence". I cited some to the opposite effect, when I pointed out that it was common for opponents of the Nicaraguan contra policy to avoid classified briefings so they could not be accused of leaking secrets.

THAT'S how it's done.

Dodger gets the game: basically, the more authoritatively informed Members of Congress are about classified programs, the more constrained they are in publicly debating 'em.

If you don't LIKE that, Lambert, you're making progress: cuz when you posted about it, you were too fucking ignorant to even KNOW it. Ignorance is not a sound foundation for opinion.

But again, SCI level material like the actual techniques and specific results of "enhanced interrogation" would never have been shared in advance with the Congress. For one thing, it's ILLEGAL (or was, at the time of the briefings), and as a rule you don't tell the folks who write the laws that you're gonna break 'em cuz their whole power is based on writing the rules that you have to follow. When you tell 'em you're NOT gonna follow those rules, it can get messy: it looks like you're asking permission, when at most, maybe later, you may demand forgiveness.

So you don't tell 'em.

And there is a good reason, beyond the obvious political and legal consequences: this sorta thing is COMPARTMENTALIZED information. Nobody is supposed to know too much about it.

Doubtless what they briefed the Congress on (as has been known for years) is that we've got these guys in custody, it's not clear what their legal status is, we think they know stuff that we want to know in order to protect America, so we're gonna get creative about how we ask 'em questions. I doubt strongly that there wasn't then a brief exchange (if in fact it wasn't how each briefing STARTED) describing what the relevant laws were, and an assurance that everything would be done within the law.

That's NOT what the Post piece implies, and it is a particularly below the belt sorta implication, cuz by definition (and by law) the principals cannot refute the charges.

The amazing thing is that ya'll don't seem to GET that. In the kangaroo court of public opinion, you're the joey in the pouch.

Remember, too, that for the Congress to receive regular, detailed briefings on classified programs involves a high level of trust: there is a limit to just how much the Congress can compel the Executive to reveal, just as there is a limit to how much the Executive can hide and still get Congress to cooperate with funding and political support.

So it's not the law, as such, that governs these kinds of briefings: it's the mutual understanding that what is said in 'em will NOT be revealed, particularly for the kinds of short-term political gains these leaks clearly seek.

And you guys fall for it: hell, you've DIVED into the muck like shitty spelunkers.

Posted by: theAmericanist on December 10, 2007 at 8:50 AM | PERMALINK

theAmericanist
So it's not the law, as such, that governs these kinds of briefings: it's the mutual understanding that what is said in 'em will NOT be revealed, particularly for the kinds of short-term political gains these leaks clearly seek.

The implication of your logic is kind of humorous. According to you, congressmen are desperately trying to maintain their ignorance of classified things, while the executive branch is desperately trying to keep them as informed as possible.

Posted by: SJRSM on December 10, 2007 at 9:08 AM | PERMALINK

What's the basic objection to "extraordinary rendition?" I mean, you're allowed to capture your opponents soldiers in war time, aren't you? And the Geneva Convention doesn't require you to give them a trial in a court of law, does it? Is the objection that there was never a formal congressional declaration of war against A.Q.? I can understand the existence of such a program might make us more hated, so, I understand that, but what is the legal objection?

Posted by: New Haven on December 10, 2007 at 9:26 AM | PERMALINK

Am I the only one who frankly doesn't have a clue as to The Americanist's political leanings, among other reasons because I can't quite get through his florid postings to understand what the fuck he's talking about?

Posted by: Woody on December 10, 2007 at 9:29 AM | PERMALINK

Good for Kevin to point this out, but I don't know how he can credit Harmon without knowing what she said in her letter or considering what other alternatives were available to her if she truly opposed the methods at issue.

To me, the story reflects the reality that persons with actual responsibility for protecting Americans will and should approve some level of "enhanced interrogation techniques" when deemed necessary to protect innocent Americans. It is fine that our policy and our candidates to espouse "no torture," but I think that in practice the real world will trump lofty principles on this issue. I also think rest of the world would expect us to do what is necessary to try to protect ourselves and that they would and are doing the same thing.

Posted by: brian on December 10, 2007 at 9:37 AM | PERMALINK

It is fine that our policy and our candidates to espouse "no torture," but I think that in practice the real world will trump lofty principles on this issue.

Brian: In this case the world world and lofty principles coincide. Toture doesn't work, and further erordes our soft power in the bargain. It quite literally makes it harder to attain victory against terrorists.

Posted by: New Haven on December 10, 2007 at 9:43 AM | PERMALINK

In this case the world world = In this case the real world.

Need coffee.

Posted by: New Haven on December 10, 2007 at 9:45 AM | PERMALINK

Methinks it's the blinders you're looking through, Woody.

(I have solid progressive credentials; but it's not about me.)

What I've said here, plain as can be, is that Pelosi, et al, were NOT told specifics about the interrogations. That would be SCI level information at the time, and would not have been shared.

To the extent they were briefed, they are obligated by law NOT to reveal what they were, and were not told.

So in bitching that Pelosi ought to resign, etc., you guys are falling for a very old trick. Executive branch sources claim (hint, imply, wink) that Congress was in on waterboarding all along, and the ones the fingers point at cannot speak up to refute the lie.

Clear enough?

SJRSM: learn to read. What I said was that Congress has very limited powers to compel the Executive branch to tell them classified stuff.

Going too fast for you?

So in order to be properly informed, since after all they write the checks for all this, Congress has to nurture a mutual trust with the Executive branch that they will be told what they need to know... in order to write the checks.

BUT -- there are limits to what the Executive branch can, or should even try to hide from the Congress, because they DO depend on Representatives and Senators not only to write the checks, but also to provide political support and legal cover for whatever it is the Executive is doing.

Still too fast for you? Read it again.

In previous cases (like the Nicaraguan contras), Congressional critics would simply not go to classified briefings so that they could not be accused of leaks.

In this case, that model doesn't work well: it wasn't a matter of covert funding for a war. In this case, it was FIRST, the claim that waterboarding, etc., are not legally torture, and SECOND, that changing that would simply a matter of Executive interpretation rather than a new statute (which Congress would have to write), OR abrogating treaty obligations (which is beyond the power of Congress).

So I say again: Congress was NOT informed. Y'all evidently believe Bush's minions when it suits your dumbass purposes.

Why is that?

Posted by: theAmericanist on December 10, 2007 at 9:45 AM | PERMALINK

New Haven:

We had a long thread on the "torture doesn't work" agument Saturday. Some interesting stuff, but I think the bottom line is that it works sometimes, but are the moral issues and potential adverse consequences such that it should never be used. Personally, I thought it should be used in limited circumstances. Apparently, the democrat leaders at the time were in favor of an even more aggressive approach than mine. The reality is that it would not take much of a renewed high level terrorist threat for most politicians (and most persons) to be in support of "torture" in limited circumstances.

Posted by: brian on December 10, 2007 at 10:16 AM | PERMALINK

"I think the bottom line is that it works sometimes..."

only if you don't know what "works" means.

Posted by: theAmericanist on December 10, 2007 at 10:22 AM | PERMALINK

Why discount Bob Graham? This is clearly a leak designed to embarrass Democrats, so it should be assumed that it might not contain all the relevant information. For example, how clear were they about any of this?

More significantly, Graham's notebooks are legendary for their detail and accuracy. Graham also voted against the Iraq resolution; he is one of the few with the guts to oppose the administration publicly from early on.

Without more information, I would accept Graham's denial and question Pelosi and Harman (Pelosi is vague and Harman might have been in different meetings, given the timing). I would always, always question anything Goss says.

Posted by: TFisher on December 10, 2007 at 10:35 AM | PERMALINK

theAmericanist,

SCI refers to "secret compartmentalized information". That means information which is never shared in ALL its parts to any single person, and whose parts are carefully parsed so that nobody who knows enough of ANY part, knows anything useful about any other part.

Let's start with a minor thing, SCI stands for Sensitive Compartmented Information. Moreover, the compartmentalization refers to limits on who can view that information. But if an individual is given access to an SCI program or subject, they will have access to whatever has been compartmentalized and classified at that level.

In terms of Congress, certain members and their staffs have the necessary clearances to view SCI material provided they are approved to access that material. So there is no basis for your blanket assertion that "No member of Congress would EVER have qualified for the compartmentalized information that we were torturing prisoners." If these members were cleared to be briefed on the interrogation techniques, then it is certainly possible (I would say probable) that they got into what the enhanced techniques were. I don't think that it was simply left at "so we're gonna get creative about how we ask 'em questions" and, in any event, there is no reason inherent to clearances themselves that it could only go to that level of detail.

Even more stretched is you passionate claim that "When someone who is cleared for it is presented with classified material in an authorized manner, THEY CAN NOT REVEAL IT. Not even somebody else leaks a lie about it." I don't know where you've been these last few years but clearly the prohibition on either leaking classified material or talking about it has not exactly been effective. And in any event, members could discuss the fact that they had been briefed on the enhanced interrogation techniques without violating any of their clearance restrictions. Or is Harman going to jail because she openly admitted to sending a classified letter to the CIA based on the briefings she attended? Of course she isn't, because admitting you were briefed is not the same as disclosing the contents of the briefing.

Posted by: Hacksaw on December 10, 2007 at 11:17 AM | PERMALINK

We had a long thread on the "torture doesn't work" agument Saturday.

Brian: Matt Yglesias did a post on this a few days ago. Don't have time to find a link at the moment, but I'm sure you could find it easy enough if you're interested. Bottom line, the point is not to do some sort of exhaustive examination to determine, in an unlikely hypothetical with "perfect" conditions, whether or not we can rule out with 100% certainty that an episode of torture, somehow somewhere, might potentially yield useful information. The point is rather, if you're examining the efficacy of a policy, you need to do cost benefit analysis. And the results of such an analysis are overwhelmingly clear: a policy of torture is not efficacious and causes a net harm to US interests. Assuming you're an American, do you want to harm your country? It's really that simple.

Of course, torture is also immoral and illegal.

Posted by: Jasper on December 10, 2007 at 11:24 AM | PERMALINK

TFisher - I agree with you about Bob Graham and your observations in general. Although it's quite possible that note-taking in this sort of highly classified briefing isn't allowed. Still, I hardly think that Graham would have forgotten being briefed in detail about 'enhanced' interrogation. What an Orwellian term.

Posted by: nepeta on December 10, 2007 at 11:28 AM | PERMALINK

What, are you taking reading comprehension classes.... from Dice?

Compartmentalized information is just that -- compartmentalized. Just cuz you're cleared to know they're building a gizmo (cuz you have to write the check for it) doesn't mean you get to know what it's FOR, or who we've promised to give it to -- those are two different departments, and SCI doesn't work that way.

So if I was the chair or chief of staff of a select committee on intelligence, I would require that I be told about pretty much any significant intelligence operation, AND (as a sort of price for t hat access) that I NOT be told about anything operational. My job would be to approve, disapprove, or debate the thing WITHOUT revealing secrets.

In other words, I'd be told "we're gonna get creative about how we ask prisoners", but NOT "we're going to hold their heads under water until they talk."

What I'm telling you guys is that this leak is not simply aimed at distracting from Bush's culpability (for a lot of things) by making gullible lefties bitch about Pelosi, et al, it is ALSO a serious breach of what needs to be trust between the Congress and the Executive: a trust that has already been all but dissolved.

The old line was that a spy like William Casey wouldn't tell a Congressman if the guy's coat was on fire, even if he asked whether Casey had any intelligence about the smoke in the room. The Bush people have gone several steps past that -- they'd leak to the papers that the guy HAD been briefed that his coat was ignited before he put it on, and then leave him with nothing to say about the real briefing: where he might have asked, 'what's with all this smoke?", and heard about "new room lighting procedures."

If I was, say, Congresswoman Harman, I might have gotten very suspicious about the light and the smoke. I might write a classified letter expressing serious reservations about what I heard implied by "get creative".

But, guess what? I wouldn't go public with it: that would be a violation of my agreement with the Executive by which I received classified information, if in fact it wasn't a violation of the law: speech and debate clause, me eye.

And there are very distinct limits to how much I can refute newspaper stories that make claims about classified briefings IF I KNOW BETTER BECAUSE I WAS IN THE BRIEFINGS. That's one big reason there are leaks and counter-leaks and back-channels and whatnot.

This is a perennial tug of war between the Executive and Legislative branches, after all. I remember taking a grad class when I was working in the Senate, in which the Pentagon Papers came up. I was gabbing about it in the office, and a senior guy said -- yeah, I remember when Ellsberg showed up in the Foreign Relations Committee's front office, with a scared look on his face and a big cardboard box on his shoulder. He asked to see the guy with the highest security clearance on the Committee. (Carl Macy.)

If Macy had called the FBI instead of reading what was in the box, it is unlikely that anybody would have ever heard of Daniel Ellsberg again. THAT'S the paradigm for how this kind of Congressional oversight really works -- it's not classified briefings that nobody can ever debate. Absent trust, the main purpose of classified briefings is CYA and finding ways to selectively leak in order to distract and attack.

Stop falling for the fast shuffle, willya?

Posted by: theAmericanist on December 10, 2007 at 11:39 AM | PERMALINK

Like it or not, Bush was the president we had when we were attacked. Congress could have given its support to President Gore and none of this stupid torture policy or Iraq invasion would have happened. Bush drags everything he touches into the sewer.

Posted by: bakho on December 10, 2007 at 11:39 AM | PERMALINK

The reality is that it would not take much of a renewed high level terrorist threat for most politicians (and most persons) to be in support of "torture" in limited circumstances.

If American politicans and persons think torture will reduce terrorist threats, then the rest of the world's politicians and persons will think torturing Americans will reduce aerial bombing of civilians. The reality is, if torture works, it works for everyone, and America's use of it legitimizes its use.

Posted by: Brojo on December 10, 2007 at 11:51 AM | PERMALINK

Kevin, I disagree that all the sources for the story are "out to get Democrats." Some, like Porter Goss, indeed probably are, but not all of them.

Let's face it, Rockefeller was/is a total cluster-fuck on this. Harman and Pelosi perhaps only a step less bad. And, even if the original 2002 environment made Democrats so timid, by, say, 2005, they'd had plenty of time to steel themselves, and to do the right thing, at least "leaking," if not making an on-the-record revelation of what was being done and challenging Bush to charge them with anything criminal.

Posted by: SocraticGadfly on December 10, 2007 at 11:58 AM | PERMALINK

I'm a Democrat. I regret to say it, but these Democrats betrayed the Republic. They were cowards and they enabled fascists. And I include Harman.

Posted by: David in NY on December 10, 2007 at 11:59 AM | PERMALINK

theAmericanist,

Disagreements aside, your comments on the tug of war between the executive and the legislative branches are quite good.

I also agree with you regarding congressional access (via the intelligence committees) to information on intelligence operations versus access to operational information. Where we disagree is over whether or not a briefing on interrogation techniques would have to exclude discussion of specific techniques. If I read you correctly, you are arguing that waterboarding is an operational practice and that congressional members would therefore not be approved to be briefed on it. You therefore conclude that the briefing would essentially have said "we're gonna get creative about how we ask 'em questions" and leave it at that. I think you are being overly restrictive here. I think it is possible, even likely, that the briefing would not go into how often the technique was used, on whom, and to what effect (those are specifics that might be more restricted). But it seems as likely that to some extend, the practices that were approved were described (even at a superficial level) to the members.

And while you correctly note the limits members might have in openly discussing the briefing (or more particularly its contents), you also note that the means to do this usually involve counter-leaks or anonymous comments. Indeed, the Post story has those anonymous comments. Interestingly, none of those leaks (maybe Graham's but that seems to be a blanket denial) has made the argument you are making. To the contrary, the leaks appear to confirm that the techniques were in fact described to the lawmakers.

Posted by: Hacksaw on December 10, 2007 at 12:00 PM | PERMALINK

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.

I am so fucking tired of this "he said/she said" false objectivity in reporting. A more accurate and more honest reporter would have written "Among the techniques described, said two officials present, was waterboarding, a practice that was unequivocally considered torture under both existing US and international law, as codified by the Geneva Conventions, and had been prosecuted as torture by the US government for the last hundred years ."

Posted by: Stefan on December 10, 2007 at 12:02 PM | PERMALINK

Amen to Pelosi resignation. Pelosi and Rockefeller.

Enough already.

Memo to Dem fundraisers:

Don't call anymore.

Posted by: Jeffrey Davis on December 10, 2007 at 12:12 PM | PERMALINK

What's the basic objection to "extraordinary rendition?"

The objection is that by the US claiming it has the right to kidnap anyone anywhere in the world without charge or trial it undermines an international system of law.

I mean, you're allowed to capture your opponents soldiers in war time, aren't you?

That's not what extraordinary rendition is. "Extraordinary rendition" is a mealy-mouthed alterntive word for "kidnapping." It is not the practice of capturing armed opponents on the batlefield.

And the Geneva Convention doesn't require you to give them a trial in a court of law, does it?

If you treat them as prisoners of war with all the rights attendant to such prisoners, no. But that then means that you can't torture them, you have to permit the Red Cross access to them, you can't charge them with a crime for the mere act of being a combatant, etc. etc. If you do charge them with crimes, then you do indeed have to give them a trial consistent with recognized standards of justice.

Is the objection that there was never a formal congressional declaration of war against A.Q.?

One objection, among many others, is that hundreds if not thousands of men who are not in any way connected to al Qaeda, who are in many cases wholly innocent civilians, have been kidnapped.

I can understand the existence of such a program might make us more hated, so, I understand that, but what is the legal objection?

What's the legal objection to, say, German agents secretly entering this country, kidnapping Donald Rumsfeld from his vacation home in Taos and then shipping him to Berlin in a packing crate to stand trial for the torture of a German citizen?

Posted by: Stefan on December 10, 2007 at 12:14 PM | PERMALINK

They should all be tried, convicted and jailed for accomplice liability. To the extent that people died during the these torture sessions, then they should face capital charges, and be executed after conviction thereof.
Along with a long list of Republicans.

Posted by: Aaron on December 10, 2007 at 12:29 PM | PERMALINK

What's the legal objection to, say, German agents secretly entering this country, kidnapping Donald Rumsfeld from his vacation home in Taos and then shipping him to Berlin in a packing crate to stand trial for the torture of a German citizen?

We're not at war with Germany. We are at war with A.Q. Or, to put it another way and turn things around, in 1943 we would have been in our rights to send the OAS into Berlin and kidnap Goehring. In fact "kidnapping" enemy soldiers is a long-accepted practice during war. It usually involved recon missions. You knew, you send out a small squad under cover of darkness on a prisoner-taking mission, to gain intelligence. I quite understand the legal prohibitions against torture, but I still don't see the difference between the WWII practice described above, and extraordinary rendition, other than the fact that there's no formal declaration of war between the US and AQ.

Mind you, I'm not saying such a policy survives cost-benefit analysis if you take the opposition of the rest of the world into consideration (ie., soft power considerations). I'm just saying I still don't get the legal argument against E.R. Again, we didn't give some private in the Wermacht a trial after we "kidnapped" him and brought him back to the base for questioning.

Posted by: New Haven on December 10, 2007 at 12:30 PM | PERMALINK

Stefan,

The reason the articles are not written as you proposed is that, your passionate beliefs notwithstanding, waterboarding has not been unequivocally considered torture either in terms of prohibitions under U.S. law or in terms of the applicability of the Geneva Conventions to illegal combatants.

As for extraordinary rendition, I think it is important to note that in almost all cases, local authorities were involved in detaining the individual and then turning them over to the U.S. so I'd be cautious with the term "kidnapping."

Posted by: Hacksaw on December 10, 2007 at 12:49 PM | PERMALINK

The reality is, if extraordinary rendition works, it works for everyone. America's use of rendition legitimizes its use against American war crime supects.

Posted by: Brojo on December 10, 2007 at 1:03 PM | PERMALINK

Since the article was oblique in its depiction of what was or wasn't in the briefings, think back to Mukasey's confirmation. AG-to-be was quite circumspect in answering the direct question: is waterboarding torture? Mukasey didn't give that answer because he didn't know, he gave that answer so as not to jeopardize CIA (and contractors, probably) personnel who have used the technique.

For Mukasey to be so circumspect, knowing full well he would be asked the question, indicates to me that it was highly unlikely any Congressman or woman was told the specific techniques used. It seems to me more likely that they were told that (per Yoo et al.) every technique employed was legal without revealing all the nuts and bolts, racks and pistons, water and surf boards to be used. Isolation, hot and cold, maybe even the Noriega playlist to regale the prisoners at similar volumes but they weren't told enough to conclude that the CIA was torturing prisoners, I mean detainees.

What they weren't told, IMO, was that the CIA would use techniques that constituted torture. The legal memos from Yoo at the time also argued that the Geneva Conventions didn't apply.

Were they briefed, no doubt; were they told that the CIA was torturing prisoners at Gitmo, no.

Although I have to admit, having visited Gitmo several times, including a night outside the EM club on SP duty, that just being in Gitmo seemed like torture to me.

Posted by: TJM on December 10, 2007 at 1:04 PM | PERMALINK

"the leaks appear to confirm that the techniques were in fact described to the lawmakers.." is cuz the leaks are intended to serve the executive branch's interests. That's their PURPOSE, to distract attention from their own sins by discrediting those who weren't party to 'em, by pretending that they were informed, when they weren't.

"waterboarding has not been unequivocally considered torture..."

Bullshit.

Look: the sorta mealymouthed contention here is that (as somebody said upthread) the Bush guys would have gone to Congress and said -- 'okay, we were attacked on 9-11, so we're gonna abandon the Geneva Convention. Just so you know -- we're gonna start drowning people during interrogations. Remember how we prosecuted the Japanese for that? Well, now WE'RE gonna do it. Yeah, yeah, we all know it's against our laws and treaty obligations and contrary to our values, but we can get around all that. We're all fluent in bullshit. We'll just call it something else -- you okay with that?

And then have gotten a wink and a nod from Pelosi, Rockefeller, etc., ?

Whaddaya, nuts?

Posted by: theAmericanist on December 10, 2007 at 1:08 PM | PERMALINK

theAmericanist,

But (assuming you won't believe Goss) Harman did comment in the story and did not offer the argument you have been making. She certainly could have said "I was at that briefing and they did not get into any specific techniques" without violating any clearance rules. And while the Pelosi sources are anonymous, assuming the Post didn't lie about them being familiar with Pelosi, they didn't offer this argument either. In other words, the story included leaks from people who hod no reason to "serve the executive branch's interests" and yet they failed to make the case that you are making.

As for the legality of waterboarding, you and others are simply ignoring the fact that this issues is still be debated (both within Congress and among lawyers across the government). So no, there has been no unequivocal conclusion that it is torture. You may be convinced that it is, and certainly there is a compelling argument to be made that it is, but the reality (whether you like it or not) remains that is a question still under debate.

Posted by: Hacksaw on December 10, 2007 at 1:24 PM | PERMALINK

OK so as I read him (and it's not easy) theAmericanist is saying that the Post article is full of deliberate lies, made out of whole cloth and planted by the Administration to embarass the Democrats while holding them hostage to their confidentiality agreements, so they cannot protest and expose the lie.

OK -- I have no way (or reason) to dispute this. But if it is true, if the members of Congress have no way of protesting that these are lies, then our government -- and our country -- is very sick.

Posted by: JS on December 10, 2007 at 1:29 PM | PERMALINK

As for exactly how much the briefings disclose, we know from Rockefeller's letter (which I quoted above) that he felt he had seen stuff he is was opposed to. And he said, te repeat:

The record needs to be set clear that the Administration never afforded members briefed on the program an opportunity to either approve or disapprove the NSA program.
Posted by: JS on December 10, 2007 at 1:32 PM | PERMALINK

theAmericanist wrote
In previous cases (like the Nicaraguan contras), Congressional critics would simply not go to classified briefings so that they could not be accused of leaks.

That is one of the saddest things I've heard. Real American Heroes.

A couple of interesting tidbits. First, congressfolks do not have security clearances. None of them. Not required of them. Neither do the Prez and Veep, for that matter. A clearance means words like investigation and adjudication. Thought people ought to know. In leaking info, they are violating agreements but not a clearance. Not sure about any laws. Good doc here.

Second, and I'm trying to remember the details, but I am pretty durn sure that classification is not a way to "launder" crimes, i.e., if you find out that something criminal is classified, it is still criminal.

Third, access to a compartment within SCI does not mean acccess to everything. Need to know rules.

Good read on what congress has access to.

Posted by: SJRSM on December 10, 2007 at 1:50 PM | PERMALINK

We're not at war with Germany. We are at war with A.Q.

In that case why are we kidnapping German citizens who are not members of al Qaeda?

Wrongful Imprisonment: Anatomy of a CIA Mistake: German Citizen Released After Months in 'Rendition'

By Dana Priest
Washington Post Staff Writer
Sunday, December 4, 2005; A01

...the CIA had wrongfully imprisoned one of [Germany's] citizens, Khaled Masri, for five months, and would soon release him, the sources said. There was also a request: that the German government not disclose what it had been told even if Masri went public. The U.S. officials feared exposure of a covert action program designed to capture terrorism suspects abroad and transfer them among countries, and possible legal challenges to the CIA from Masri and others with similar allegations.

....the CIA admitted to Germany's then-Interior Minister Otto Schily that it had made a mistake, it has labored to keep the specifics of Masri's case from becoming public....Masri was held for five months largely because the head of the CIA's Counterterrorist Center's al Qaeda unit "believed he was someone else," one former CIA official said. "She didn't really know. She just had a hunch."

Posted by: Stefan on December 10, 2007 at 1:53 PM | PERMALINK

In fact "kidnapping" enemy soldiers is a long-accepted practice during war. It usually involved recon missions. You knew, you send out a small squad under cover of darkness on a prisoner-taking mission, to gain intelligence.

You are again confusing and conflating two different subjects. In the example you cite above it is clear that the people you are capturing are valid targets, because they are generally soldiers under arms in a battlefield situation during wartime. Whatever the Bush regime may claim, we are not at war. Moreover, you cannot "kidnap" enemy soldiers-- if they are active soldiers under arms, they are captured and held as POWs.

What we are doing is kidnapping people who may or may not be members of a criminal organization and treating them as criminals without charge or trial.

Posted by: Stefan on December 10, 2007 at 1:59 PM | PERMALINK

The reason the articles are not written as you proposed is that, your passionate beliefs notwithstanding, waterboarding has not been unequivocally considered torture either in terms of prohibitions under U.S. law or in terms of the applicability of the Geneva Conventions to illegal combatants.

Lie.

Waterboarding Used to Be a Crime

By Evan Wallach
Sunday, November 4, 2007; Page B01

As a JAG in the Nevada National Guard, I used to lecture the soldiers of the 72nd Military Police Company every year about their legal obligations when they guarded prisoners.

....The United States knows quite a bit about waterboarding. The U.S. government -- whether acting alone before domestic courts, commissions and courts-martial or as part of the world community -- has not only condemned the use of water torture but has severely punished those who applied it.

After World War II, we convicted several Japanese soldiers for waterboarding American and Allied prisoners of war. At the trial of his captors, then-Lt. Chase J. Nielsen, one of the 1942 Army Air Forces officers who flew in the Doolittle Raid and was captured by the Japanese, testified: "I was given several types of torture. . . . I was given what they call the water cure." He was asked what he felt when the Japanese soldiers poured the water. "Well, I felt more or less like I was drowning," he replied, "just gasping between life and death."

Nielsen's experience was not unique. Nor was the prosecution of his captors. After Japan surrendered, the United States organized and participated in the International Military Tribunal for the Far East, generally called the Tokyo War Crimes Trials. Leading members of Japan's military and government elite were charged, among their many other crimes, with torturing Allied military personnel and civilians. The principal proof upon which their torture convictions were based was conduct that we would now call waterboarding.

....More recently, waterboarding cases have appeared in U.S. district courts. One was a civil action brought by several Filipinos seeking damages against the estate of former Philippine president Ferdinand Marcos....The court awarded $766 million in damages, noting in its findings that "the plaintiffs experienced human rights violations including, but not limited to . . . the water cure, where a cloth was placed over the detainee's mouth and nose, and water producing a drowning sensation."

In 1983, federal prosecutors charged a Texas sheriff and three of his deputies with violating prisoners' civil rights by forcing confessions. The complaint alleged that the officers conspired to "subject prisoners to a suffocating water torture ordeal in order to coerce confessions. This generally included the placement of a towel over the nose and mouth of the prisoner and the pouring of water in the towel until the prisoner began to move, jerk, or otherwise indicate that he was suffocating and/or drowning." The four defendants were convicted, and the sheriff was sentenced to 10 years in prison.....

Evan Wallach, a judge at the U.S. Court of International Trade in New York, teaches the law of war as an adjunct professor at Brooklyn Law School and New York Law School.

http://www.washingtonpost.com/wp-dyn/content/article/2007/11/02/AR2007110201170_2.html


Posted by: Stefan on December 10, 2007 at 2:03 PM | PERMALINK

I quite understand the legal prohibitions against torture, but I still don't see the difference between the WWII practice described above, and extraordinary rendition, other than the fact that there's no formal declaration of war between the US and AQ.

I'll answer your confusion with a question: do you think it's legal for al Qaeda terrorists to kidnap an American citizen they merely suspected (but did not know) to be an off-duty military officer walking on the streets of Rome, bundle him into a car, drug and bind him, fly him to Pakistan, and detain and question him for months on end? Would you consider that a crime? And let's say he wasn't even a soldier, but was merely a tourist with short haircut? If, as you believe, the US is "at war" with al Qaeda, then you shouldn't have a problem with that.

Posted by: Stefan on December 10, 2007 at 2:11 PM | PERMALINK

It sorta derails the thread, Stefan, but it IS pretty elemental to the whole mess that "war" generally refers to conflict between nation states, and the whole elaborate structure of the 'laws of war' is based on that.

In fact, in the olden days before the UN, war was legal, sorta like a lawsuit. You weren't ALWAYS in a state of legal conflict with your neighbor over a condition, like his big dead tree hanging over your garage, or an event, like when it fell down and crushed the roof. But you COULD take him to court over it with a lawsuit -- and nations could go to war with each other, with elaborate rules about what you could and could not lawfully do.

Now under the UN system, war is essentially illegal (it is also clunkier under American law, which is why we have so few declarations of war even though we send troops to fight all over the place).

"Terror" is an emotion, not a nation state. The global war on terror is one of those phrases that's just calculated to mislead.

And al Qaeda isn't a nation state, either. We went to war in Afghanistan primarily because it WAS a nation state that had provided a safe haven for AQ, but that is just about the only simple clear and old-fashioned element about this mess.

If bin Laden appeared in Khartoum, protected by the government, I wouldn't want him rendered to the Saudis. But I wouldnt have any problem with US agents grabbing him and taking him to Guantanamo -- or, for that matter, to Ground Zero.

Why would you object?

Posted by: theAmericanist on December 10, 2007 at 2:13 PM | PERMALINK

Again, we didn't give some private in the Wermacht a trial after we "kidnapped" him and brought him back to the base for questioning.

Not quite true. We didn't give him a trial because (a) we didn't consider him a criminal, and if he refused to talk we merely put him in a POW camp and gave him all the rights of a POW and (b) it was generally quite clear that he was an enemy soldier.

If, however, the captured person disputed the fact that he was a Wehrmacht soldier (if, for example, he said he was merely a local civilian dragooned into doing labor at the Wehrmacht camp) then he was indeed afforded a properly constituted review panel to determine the veracity of his claim, and if that panel found he was not an enemy soldier then he was released.

Posted by: Stefan on December 10, 2007 at 2:18 PM | PERMALINK

When AQ shows up in the US of A or other civilized countries we can hunt them down using our laws. When they showed up in Iraq (or we attacked Afghanistan) we hunted them down using the tools of war. It's the middle turf that is tricky, when they hide in failed nations like Somalia or grey zones like Waziristan. Laws don't reach them, but out-and-out war doesn't either. That is the situation we are going to be confronted with for some time into the future. I'd like to hear candidates talk about how we deal with that situation.

Posted by: SJRSM on December 10, 2007 at 2:28 PM | PERMALINK

As for the legality of waterboarding, you and others are simply ignoring the fact that this issues is still be debated (both within Congress and among lawyers across the government). So no, there has been no unequivocal conclusion that it is torture. You may be convinced that it is, and certainly there is a compelling argument to be made that it is, but the reality (whether you like it or not) remains that is a question still under debate.

Lie

The federal torture statute 18 U.S.C. § 2340A prohibits acts outside the United States that are specifically intended to cause “severe physical or mental pain or suffering," while the 1987 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to which the US is a signtory prohibits practices that constitute the intentional infliction of “severe pain or suffering, whether physical or mental.” Waterboarding is also a war crime as defined under the federal war crimes statute 18 U.S.C. § 2441, which criminalizes grave breaches of the Geneva Conventions (in international armed conflicts), and violations of Article 3 common to the four Geneva Conventions (in non-international armed conflicts). Waterboarding also violates the federal assault statute, 18 U.S.C. § 113, when it occurs in the “special maritime and territorial jurisdiction of the United States,” a jurisdictional area which includes government installations overseas. When involving the U.S. armed forces waterboarding is considered assault, and cruelty and maltreatment under the Uniform Code of Military Justice.

Posted by: Stefan on December 10, 2007 at 2:28 PM | PERMALINK

Um, Stefan: and when it were found that they WERE, they were shot. Without trial. And FDR was ready to defy the SCOTUS to do it.

Careful what you argue thar, pardner.

The umpteen things SJRSM doesn't understand about security and clearances and Congress are too many to sort out, but for once, a hypothetical is worth exploring: supposing Jeannette Rankin turned out to be immortal, and as a US Representative during the 50s demanded that she be given the designs for the H-Bomb, so she could give it to anybody who asked. In the 70s, she'd have given away Stealth technology; these days, she'd be telling bin Laden all about our interrogation techniques.

Right?

Under SJRSM's demented reasoning, the Executive branch would have no choice but to let her have all that stuff -- since members of Congress need no security clearance, and have a need to know EVERYTHING.

Another hypothetical: it's not impossible that in some future election, you might get 100,000 or so voters in some Congressional district who might vote for somebody who advocates positions that most of the rest of the country regards as a threat to our national security, maybe even openly treasonous. (Think Helen Chenoweth, only worse -- from either side of the spectrum.)

Ya think a US rep like that should automatically have access to our nation's most significant secrets? No?

Neither does the Congress -- and the Executive branch. There are RULES about who gets to know what -- and they would not have included the kind of details claimed by the Post article.

Posted by: theAmericanist on December 10, 2007 at 2:56 PM | PERMALINK

If bin Laden appeared in Khartoum, protected by the government, I wouldn't want him rendered to the Saudis. But I wouldnt have any problem with US agents grabbing him and taking him to Guantanamo -- or, for that matter, to Ground Zero.

That's the easy case. We know who bin Laden is, what he looks like, what he's done. What about the case of, say, (and here I'm making up a representative example) Osama ben Hussein, a German businessman of Arab ancestry on vacation in South Africa who's grabbed by US agents and taken to Guantanamo for six years? The German authorities and Hussein's family and colleagues all assert this is a horrible case of mistaken identity, but US officials stonewall them and claim there's "secret intelligence" that confirms that Hussein is a senior member of al Qaeda, intelligence which later turns out to be false. Is there a problem with that?

Posted by: Stefan on December 10, 2007 at 2:57 PM | PERMALINK

Yes.

Posted by: theAmericanist on December 10, 2007 at 3:00 PM | PERMALINK

Um, Stefan: and when it were found that they WERE, they were shot. Without trial. And FDR was ready to defy the SCOTUS to do it. Careful what you argue thar, pardner.

Found out that they WERE what? Privates in the Wehrmacht? No, they weren't. What are you talking about?

Posted by: Stefan on December 10, 2007 at 3:02 PM | PERMALINK

Sorry, I was skipping a couple steps: there was a WW2 case where FDR basically skilled over all the relevant rules so he could execute German spies, which Bush has cited as support for his tribunal policy: http://www.law.uchicago.edu/tribunals/wp_011302.html

Posted by: theAmericanist on December 10, 2007 at 3:19 PM | PERMALINK

theAmericanist
The umpteen things SJRSM doesn't understand about security and clearances and Congress are too many to sort out...

Seeing as how I have an SCI, and I backed up my assertions with documentation, I'm pretty sure I know what I am talking about.

Under SJRSM's demented reasoning, the Executive branch would have no choice but to let her have all that stuff -- since members of Congress need no security clearance, and have a need to know EVERYTHING.

Huh? Talk about reading comprehension: lack of thereof. I pointed out that congressfolks do NOT have clearances, unlike what has been asserted multiple times here. No Senator and no Congressman goes through a formal clearance process. They sign no NDAs.

Why did I bring that up? Because it directly affects what is and isn't legal, and what penalties go with leaks.

It does not follow that they have a need to know EVERYTHING. Duh. But you knew that. You are usually pretty smart about stuff.

Ya think a US rep like that should automatically have access to our nation's most significant secrets? No?

I'll give you another example. President Clinton's liaison with his intern would unquestionably have caused his clearance to be revoked, if he had had one. Lack of integrity in personal relations, particularly when they open you to blackmail, is a well-documented reason for revoking an SCI clearance. But he didn't hold a clearance. Nothing to revoke. Voters arbitrated that one. That is how our country works, for good or bad.

Posted by: SJRSM on December 10, 2007 at 3:28 PM | PERMALINK

The debate over waterboarding is not about whether or not it is legal for sheriff's deputies to do it nor is it about whether or not waterboarding violates POW rights under the Geneva convention. Obviously in both cases waterboarding (and any other aggressive interrogation) is illegal. That's why the Japanese were prosecuted for it and that is why the military is prohibited from doing it.

At issue is whether the CIA in interrogating an illegal combatant can lawfully do it. That's not splitting hairs, it's just keeping the focus where it should be. With regard to U.S. code, the issue has and continues to be whether or not waterboarding meets the criteria for torture. This is where the infamous CIA torture memos came from - an effort to identify what could or could not be done under the law. So Stefan can assert that "Waterboarding is also a war crime as defined under the federal war crimes statute 18 U.S.C. § 2441" but a reader looking to verify this would soon run into the same wall. Does the practice rise to level required by the law:

An act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control,

Many folks will say yes (I myself am more in agreement with that than not) but as a practical matter, it remains an issue in dispute. It was authorized by executive order and without some type of judicial review of that order, we can't say there is a definitive answer.

Everyone agrees that torture is wrong, but disagreements remain as to what exactly constitutes torture. For example this witness from physician for human rights testified before a Senate hearing a few months ago on interrogation policy:

The restrictions contained in the Army Field Manual should apply to the treatment of all detainees during interrogations conducted by all U.S. personnel (including the CIA and any contractors) anywhere in the world. Additionally, torture and abusive interrogation techniques such as stress positions, shaking and beating, temperature manipulation, threats of harm to person or loved ones, prolonged isolation, sleep deprivation, sensory overload, sensory deprivation, sexual humiliation, exploitation of fears and phobias, cultural or religious humiliation and water-boarding should be explicitly forbidden through amendments to the War Crimes Act.

He would in effect ban the full menu of enhanced interrogation techniques (not just waterboarding) because he thinks they are torture and therefore violate the law. I think that's crazy but his opinion is as valid as mine in terms of interpreting what should or should not be permissible under current U.S. laws. So I bring it up to reinforce the idea that there is no hard and fast understanding of what US Code, international law, and other relevant statutes specifically do or do not allow.

Posted by: Hacksaw on December 10, 2007 at 3:32 PM | PERMALINK

Ahh... our dispute is semantic (or legal, if you like: you're right on that point): that's why I was talking about the basic level of trust necessary between the Executive and the Legislative.

You're using the word 'clearance' in a more precise way than I did, if I used it at all -- I wasn't thinking of it in the way you're using it (which is more proper). And I was thinking from a staff perspective, where the focus is more background checks and the like; while the theory for Reps and Senators is that if you've on the election, that voters have, um, checked your background. (Cue Alcee Hastings example.)

After THAT, it's basically need to know: I don't think they told Pelosi ANYTHING "shortly after 9/11" that would have amounted to "We're going to break the Geneva Convention..", if only because she wouldn't have had a need to know that. (Not to mention that they would definitely NOT have felt a need to tell her, except in a whistlebowing capacity. And SHE might have felt she had a need to know, or not: that Casey wouldn't tell you if your coat was on fire example was from Barry Goldwater, no less.)

I challenged somebody upthread to come up with even one case where a Rep or Senator revealed classified information during floor debate, on the theory that it would be protected under the speech and debate clause.

I suppose it would be fair for somebody to challenge ME to show where any Rep or Senator has ever been prosecuted for it, either.

In the contra days, the penalties were largely understood to be political, and included those within the institution: members who rely on classified material for budget and other considerations don't look kindly on colleagues who piss off the security apparatus of the Executive branch, and of course (as this Post story shows), the political deck is stacked in the Executive's favor in politically-motivated leaks of classified stuff.

All that said, if you like: you were right and I was wrong.

Posted by: theAmericanist on December 10, 2007 at 3:41 PM | PERMALINK

Everyone agrees that torture is wrong, but disagreements remain as to what exactly constitutes torture.

Hack, the only reason waterboarding is "in dispute" as to whether it's torture is that dishonest Bush apologists are trying to claim it isn't, despite decades if not centuries of acceptance that it is in fact torture, in order to defend the use of torture by their Party. The only reasons "disagreements remain" is that said dishonest Bush apologists refuse to accept it when the decades if not centuries of agreement that waterboarding is in fact torture are pointed out to them, for to do so would be to admit that this Administration and the leaders of their Party are guilty of war crimes, and that they've been carrying water for criminals. There is no honest dispute on whether waterboarding is torture, period, full stop.

Shame on you, Hack.

Posted by: Gregory on December 10, 2007 at 3:46 PM | PERMALINK

At issue is whether the CIA in interrogating an illegal combatant can lawfully do it. That's not splitting hairs, it's just keeping the focus where it should be.

That issue has been settled. CIA personnel are subject to US law, and US law forbids torture and makes those who commit it subject to being charged with a felony. It's as simple as that.

With regard to U.S. code, the issue has and continues to be whether or not waterboarding meets the criteria for torture.

Again, that issue has been settled.

Does the practice rise to the level required by law: "An act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control"? Many folks will say yes (I myself am more in agreement with that than not) but as a practical matter, it remains an issue in dispute.

What is the issue in dispute? Whether waterboarding, i.e. forcibly drowning someone by filling their lungs with water so they slowly suffocate, is specifically intended to inflict severe physical or mental pain or suffering? No, there is no dispute about that, unless you are somehow trying to argue that forcibly drowning someone you have restrained does not cause them severe physical or mental pain or suffering -- and if you are, you are either deeply dishonest, deluded or a raving sociopath (or perhaps all three).

It was authorized by executive order and without some type of judicial review of that order, we can't say there is a definitive answer.

Executive orders cannot contravene existing codified US law, including federal statutes and obligations pursuant to international treaties. The definitive answer already exists under settled federal and international law.

So I bring it up to reinforce the idea that there is no hard and fast understanding of what US Code, international law, and other relevant statutes specifically do or do not allow.

You can attempt to reinforce it all you want, but your continued repetition of a disproven lie does not make it any more convincing to anyone else reading this.

Posted by: Stefan on December 10, 2007 at 3:48 PM | PERMALINK

Hack: two points.

First, "keeping the focus where it should be", are you REALLY arguing that torture is illegal when cops do it to suspects, and when nations do it to POWs, but it is somehow in doubt that it is still illegal when a nation holds an AQ guy prisoner?

Second, which of these practices would you consider to NOT qualify as torture: "stress positions, shaking and beating, temperature manipulation, threats of harm to person or loved ones, prolonged isolation, sleep deprivation, sensory overload, sensory deprivation, sexual humiliation, exploitation of fears and phobias, cultural or religious humiliation and water-boarding"?

Posted by: theAmericanist on December 10, 2007 at 3:49 PM | PERMALINK

The debate over waterboarding is not about whether or not it is legal for sheriff's deputies to do it nor is it about whether or not waterboarding violates POW rights under the Geneva convention.

If it is not legal for sheriff's deputies to waterboard a criminal suspect, as you concede, then why is it somehow legal for CIA or other federal personnel to waterboard a criminal suspect?

If it is not legal for Japanese soldiers to waterboard prisoners captured during a war, as you concede, then why is it somehow legal for American soldiers to waterboard prisoners captured during a war?

Obviously in both cases waterboarding (and any other aggressive interrogation) is illegal.

Obviously in both cases waterboarding was not only illegal, but definitively considered torture by the US government, and the persons who engaged in such treatment were charged with torture.

Posted by: Stefan on December 10, 2007 at 3:55 PM | PERMALINK

Additionally, torture and abusive interrogation techniques such as stress positions, shaking and beating, temperature manipulation, threats of harm to person or loved ones, prolonged isolation, sleep deprivation, sensory overload, sensory deprivation, sexual humiliation, exploitation of fears and phobias, cultural or religious humiliation and water-boarding should be explicitly forbidden through amendments to the War Crimes Act.

Which of these techniques do you consider it would OK when applied to American POWs held by enemy soldiers at some point in the future? Suppose we at some point when to war with Iran -- would it be OK, for example, for Iranian soldiers to subject American POWs to sexual humiliation? What about threats of harm to their persons or loved ones? Beating? Sleep deprivation?

Posted by: Stefan on December 10, 2007 at 3:59 PM | PERMALINK

The confidentiality constraint on members of congress comes from the following Rule XXIII, paragraph 13 of the "Code of Official Conduct":

13. Before a Member, Delegate, Resident Commissioner, officer, or employee of the House may have access to classified information, the following oath (or affirmation) shall be executed:

``I do solemnly swear (or affirm) that I will not disclose any classified information received in the course of my service with the House of Representatives, except as authorized by the House of Representatives or in accordance with its Rules.''

It does not seem that this is legally binding. Violating it would be an ethical, not legal, issue. In 1995, Senator Toricelli was accused of disclosing classified information. His case was referred to The House Ethics Committee, not to the courts. (He was not disciplined because he claimed he had received the information from unofficial channels).

Posted by: JS on December 10, 2007 at 4:04 PM | PERMALINK

theAmericanist
Ahh... our dispute is semantic...

I prefer "cmdicely-ish"

All that said, if you like: you were right and I was wrong.
Posted by: theAmericanist

You're typically the best poster here for backing up thoughts with reasons.

Posted by: SJRSM on December 10, 2007 at 4:09 PM | PERMALINK

Since I don't often get a chance to state this principle (it doesn't come up often in casual conversation, no matter HOW I try), here goes: I'm sort of an election absolutist. I think we ought to have MORE goons, clowns, crooks and nuts in Congress, cuz we ARE a "representative" democracy, after all. We ought to have a Congress that is more like us, and less like each other.

There was a big flap about this when I was a kid, which I will probably get wrong, but IIRC the good old boys in Congress ganged up on Adam Clayton Powell (I'm pretty sure his chief accuser eventually lost cuz he had a bodacious secretary on the payroll who couldn't type) and tried to throw him out of Congress....

But they couldn't do it. Congress does not and cannot control who are its members: THAT, is up to the voters.

Congress DOES write its own rules, of course, so if a guy was elected on a platform of "I shall tell America's secrets to our enemies", I kinda doubt they'd put him on the Armed Services Committee.

Posted by: theAmericanist on December 10, 2007 at 4:14 PM | PERMALINK

It is understood that congress should require of its members that get access to classified information to keep it confidential.

But what is still not clear, after the above discussion, is:

* What a member of congress should do if he/she believes that the classified information he/she has received shows illegal activities on the part of any government agency.

* Or, what recourse he/she should have if allegations appear in the press that he/she received such classified information about illegal activities and did or said nothing.

There is a conflict of oaths, here, and it seems to me that the oath to uphold the law ought to dominate.

Posted by: JS on December 10, 2007 at 4:25 PM | PERMALINK

theAmericanist,

Fair questions. To the first, I think it is quite clearly possible for things to be legal when CIA interrogators do them to terrorists that would be quite illegal for a sheriff to do to a suspect (violates the Constitution), a soldier to do to a POW (violates Geneva), or a soldier to do to an unlawful combatant (violates U.S. military policy). Like it or not, we are in rather uncharted waters here - a non-traditional enemy that fails to meet most of the standards that existing laws on detainees were premised upon. And we are dealing with laws that don't get into much more detail than "torture is wrong."

On your second question, I suspect we disagree sharply. My personal opinion is that something rises to torture when there is permanent physical harm (or the threat of it) or serious, permanent mental harm. I think stress positions, sleep deprivation, and so on don't rise to that level. They are intended to break a detainees mental will to deceive you. And don't get me started on "cultural sensitivity" and the like. Putting and Isreali flag over someone or insulting their religion is not torture. Ever.

The problem with waterboarding is huge - which after all is why it has been used so infrequently and has, I think, been suspended by the CIA. Clearly it is intended to use fear of drowning to break a subjects will which is awfully close to my own definition of torture. On the other hand, the fact that we do this to our own soldiers in training (or media folks go through it for ratings) somehow makes it seem less grave. And I'll be honest and admit that its effectiveness does play a role in my assessment of it. All in all though, I am deeply uncomfortable with waterboarding and whether or not it meets some technical opinion on torture I think we should not use it.

Stefan - Geneva protections for POWs are different than the common article protections. While the Geneva convention is very clear on how to treat POWs (that is soldiers who fight in an organized military and respect the laws of war) but far less clear on what unlawful combatants are entitled to. There is language on the conditions under which they are to be detained but things like interrogations are not covered (unlike POWs who can only be asked the proverbial name, rank, and serial number). So it is important to understand who and what each of the parts of the convention apply to.

Posted by: Hacksaw on December 10, 2007 at 4:38 PM | PERMALINK

To the first, I think it is quite clearly possible for things to be legal when CIA interrogators do them to terrorists that would be quite illegal for a sheriff to do to a suspect (violates the Constitution), a soldier to do to a POW (violates Geneva), or a soldier to do to an unlawful combatant (violates U.S. military policy).

First of all, no. There is no "terrorist exception" in US law. The law is quite clear -- it is banned, period. If you can find some "terrorist exception" in the written statutes please cite it.

Second, these aren't necessarily terrorists -- they are accused of being terrorists, but there has been no open trial or evidence presented that they are actually such (see the case I cited above of German tourist Khaled al-Masri, tortured for five months in Afghanistan).

Posted by: Stefan on December 10, 2007 at 4:58 PM | PERMALINK

Clearly it is intended to use fear of drowning to break a subjects will which is awfully close to my own definition of torture.

Waterboarding is not "fear" of drowning -- it actually is drowning. Water enters the lungs, making it impossible to breath freely. The victim is being continuously drowned throughout the torture.

Posted by: Stefan on December 10, 2007 at 5:01 PM | PERMALINK

Geneva protections for POWs are different than the common article protections. While the Geneva convention is very clear on how to treat POWs (that is soldiers who fight in an organized military and respect the laws of war) but far less clear on what unlawful combatants are entitled to.

No, it's not. See, e.g., Articles 3 and 4 of the fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, which states that [bolding mine]:

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals

and which requires that:

each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.


Posted by: Stefan on December 10, 2007 at 5:08 PM | PERMALINK

There is language on the conditions under which they are to be detained but things like interrogations are not covered (unlike POWs who can only be asked the proverbial name, rank, and serial number). So it is important to understand who and what each of the parts of the convention apply to.

What is clearly covered is that non-POWs cannot in any way or in any manner be subjected to cruel treatment and torture and outrages upon personal dignity, including humiliating and degrading treatment. Strapping someone to a table and forcibly drowning them by pouring water into their lungs to me seems like, at the very least, an outrage upon personal dignity as well as cruel treatment and torture, but then again I'm not a Republican so there are actually things which shock my conscience.

Posted by: Stefan on December 10, 2007 at 5:12 PM | PERMALINK
The sources for this story are so obviously intent on discrediting congressional Democrats that it's hard to know whether to take it at face value, …

That’s the most telling sentence in this post. The Bush Administration version. Yawn. Jumping on Pelosi or anybody based upon what they say is foolish.

Posted by: little ole jim on December 10, 2007 at 5:21 PM | PERMALINK

My personal opinion is that something rises to torture when there is permanent physical harm (or the threat of it) or serious, permanent mental harm. I think stress positions, sleep deprivation, and so on don't rise to that level.

Sleep deprivation doesn't cause permanent physical and mental harm? Sleep deprivation was a favored method of the KGB, the Gestapo, and the Japanese Empire, and in fact the Nazis conducted experiments at concentration camps to see how long inmates could be kept awake before they died (about ten days on average).

Stress positions don't cause permanent physical and mental harm? If you are kept in certain stress positions long enough you can suffer permanent crippling, blood clots, thrombosis, etc. Ask John McCain, who can't raise his arms above his shoulders because he was tied in stress positions by his Vietnamese captors when they tort...excuse me, when they aggressively interrogated him.

Or ask the CIA, which in 1956 commissioned two Cornell Medical Center researchers to study Soviet interrogation techniques, including simply making their victims stand for an extended period of time. The researchers reported that "The KGB simply made victims stand for eighteen to twenty-four hours producing 'excruciating pain' as ankles double in size, skin becomes 'tense and intensely painful,' blisters erupt oozing 'watery serum,' heart rates soar, kidneys shut down, and delusions deepen."

Posted by: Stefan on December 10, 2007 at 5:23 PM | PERMALINK

I cannot tell you how deeply disgusted I am to be arguing with a fellow American who is defending the US government's use of Nazi and KGB torture methods. I simply would not have believed you if, six years ago, you had told me that a creature like this would be boldly defending such filth in a public forum instead of slinking off in shame.

Posted by: Stefan on December 10, 2007 at 5:27 PM | PERMALINK

Simple question: can we lie to prisoners?

Posted by: theAmericanist on December 10, 2007 at 5:27 PM | PERMALINK

Stefan,

Common Article 3, which you have referenced, is indeed the generic prohibition on torture contained in the Geneva Convention. And I have already stated in several places that there kinds of broad prohibitions exist both in U.S. and international law. Of course the same issue of determining what rises to meet that criteria remain.

You were discussing the prosecution of Japanese soldiers for abuses of U.S. POWs. This is why I pointed out (and you apparently ignored) the fact that in addition to Common Article 3, the Geneva Conventions have a great deal of specifics on (1) who qualifies as a POW and (2) how they should be treated. It goes on for pages. With regard to interrogations, it says:

Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. If he willfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or status.

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.

In other words, Geneva is far more specific on interrogations for POWs than it is for unlawful combatants. In a nutshell, you can't interrogate a POW beyond name, rank, and serial number. You can interrogate an unlawful combatant but you can't torture them. But without the kind of specificity for unlawful combatants that we have for POWs under the Geneva Convention, we are back to the fundamental issue of determining what torture is and isn't.

Posted by: Hacksaw on December 10, 2007 at 5:28 PM | PERMALINK

theAmericanist,

In an interrogation I should think we could lie to prisoners, considering that's something cops can do to suspects in the U.S.

Stefan,

I suppose I could try to point out that the methods we are describing are strictly controlled and carried out under medical supervision. That the point here is not to see how long someone can stay awake until the die but rather to disorient them enough so they can't keep their cover stories straight. But it wouldn't make a difference to you.

So allow me to ask you, as Back Talk phrased it a while back, what is the harshest interrogation technique that you will support because it falls just short of actual torture? What do you think our interrogators should be authorized to do as they question folks?

Posted by: Hacksaw on December 10, 2007 at 5:38 PM | PERMALINK

If torture is bad when it's done to rapists and murders, and bad when it's done to POWs, how does it get to be good when it's done for "unlawful combatants"?

Put it this way -- if the Luftwaffe had shot down Billy Fiske over occupied France instead of free Britain in 1940, your logic would justify the SS torturing him.

(Fiske was an Olympic gold medalist, an American citizen who had to renounce his US citizenship -- to Joe Kennedy, no less -- in order to fly in the RAF during the Battle of Britain, in which he was killed. His act of joining another nation's armed forces was an explicit CRIMINAL violation of American neutrality laws, subject to imprisonment and a fine. He was killed in August, 1940: rest his soul.)

Posted by: theAmericanist on December 10, 2007 at 5:40 PM | PERMALINK

But without the kind of specificity for unlawful combatants that we have for POWs under the Geneva Convention, we are back to the fundamental issue of determining what torture is and isn't.

No, we are not. That fundamental issue has been settled. It is quite clear under both US federal statutes and under international treaties and conventions to which the US is a signatory what torture is and isn't. Waterboarding under any definition of torture rises to that level.

For example, the UN Convention Against Torture, which the United States has ratified, defines torture as

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

You do not have to determine, thefore, what torture is and what it isn't. The definition is quite clearly there in front of you in black and white.

Posted by: Stefan on December 10, 2007 at 5:41 PM | PERMALINK

I suppose I could try to point out that the methods we are describing are strictly controlled and carried out under medical supervision.

Bullshit. Prove it.

That the point here is not to see how long someone can stay awake until the die but rather to disorient them enough so they can't keep their cover stories straight. But it wouldn't make a difference to you.

Then explain, please, the numerous people who have died while being tortured by US personnel.

So allow me to ask you, as Back Talk phrased it a while back, what is the harshest interrogation technique that you will support because it falls just short of actual torture? What do you think our interrogators should be authorized to do as they question folks?

The same as the harshest interrogation methods I would support when used by the police and FBI against murderers, rapists, drug runners, pedophiles, kidnappers, gang members, and serial killers every single day in police stations all across this country. Sitting them down in a chair and questioning them. It seems to work remarkably well for them, and we don't seem to have that much trouble trying and convicting people for crimes.


Posted by: Stefan on December 10, 2007 at 5:45 PM | PERMALINK

Stefan,

You can cite the same broad language as many times as you want but it won't make it say more than I've already accepted it says.

Again, I'd be interested to see what exactly you think could be done to interrogate detainees under your reading of this language.

Posted by: Hacksaw on December 10, 2007 at 5:48 PM | PERMALINK

Sorry for posting before your second answer.

So you would treat terror suspects no more severely than a criminal within the U.S. And, I suppose, you think anything beyond that is torture.

Well, it's a position. I'll leave it to others to judge how reasonable it is.

Posted by: Hacksaw on December 10, 2007 at 5:50 PM | PERMALINK

I suppose I could try to point out that the methods we are describing are strictly controlled and carried out under medical supervision. That the point here is not to see how long someone can stay awake until the die but rather to disorient them enough so they can't keep their cover stories straight. But it wouldn't make a difference to you.

May 20, 2005
In U.S. Report, Brutal Details of 2 Afghan Inmates' Deaths
By TIM GOLDEN

Even as the young Afghan man was dying before them, his American jailers continued to torment him. The prisoner, a slight, 22-year-old taxi driver known only as Dilawar, was hauled from his cell at the detention center in Bagram, Afghanistan, at around 2 a.m. to answer questions about a rocket attack on an American base. When he arrived in the interrogation room, an interpreter who was present said, his legs were bouncing uncontrollably in the plastic chair and his hands were numb. He had been chained by the wrists to the top of his cell for much of the previous four days.

At the interrogators' behest, a guard tried to force the young man to his knees. But his legs, which had been pummeled by guards for several days, could no longer bend. An interrogator told Mr. Dilawar that he could see a doctor after they finished with him. When he was finally sent back to his cell, though, the guards were instructed only to chain the prisoner back to the ceiling. "Leave him up," one of the guards quoted Specialist Claus as saying.

Several hours passed before an emergency room doctor finally saw Mr. Dilawar. By then he was dead, his body beginning to stiffen. It would be many months before Army investigators learned a final horrific detail: Most of the interrogators had believed Mr. Dilawar was an innocent man who simply drove his taxi past the American base at the wrong time.....

The findings of Mr. Dilawar's autopsy were succinct....what caused his heart to fail was "blunt force injuries to the lower extremities"...the tissue in the young man's legs "had basically been pulpified."

"I've seen similar injuries in an individual run over by a bus," added Lt. Col. Elizabeth Rouse, the coroner, and a major at that time.

http://www.nytimes.com/2005/05/20/international/asia/20abuse.html?pagewanted=print

Posted by: Stefan on December 10, 2007 at 5:52 PM | PERMALINK

So you would treat terror suspects no more severely than a criminal within the U.S.

What's the key word in that sentence above? "Suspects."

Posted by: Stefan on December 10, 2007 at 5:55 PM | PERMALINK

So you would treat terror suspects no more severely than a criminal within the U.S. And, I suppose, you think anything beyond that is torture. Well, it's a position. I'll leave it to others to judge how reasonable it is.

So you wouldn't support the waterboarding of suspected pedophile rapists by the local police within the US? And you think waterboarding them is torture? Well, it's a position. I'll leave it to the parents of those abused children to judge how reasonable it is.....

Posted by: Stefan on December 10, 2007 at 6:02 PM | PERMALINK

Is that the best you can do Stefan? Cite a death from 2002 while the protocols for interrogation were still being developed. And for which a grand jury has convened to see if a crime has been committed?

Here's what a very quick search yielded in terms of the interrogations procedures. It's from ABC and includes folks like Human Rights Watch calling it all torture so I hope you will consider it a reasonable source. It says:

When properly used, the techniques appear to be closely monitored and are signed off on in writing on a case-by-case, technique-by-technique basis, according to highly placed current and former intelligence officers involved in the program. In this way, they say, enhanced interrogations have been authorized for about a dozen high value al Qaeda targets -- Khalid Sheik Mohammed among them. According to the sources, all of these have confessed, none of them has died, and all of them remain incarcerated.

According to the sources, when an interrogator wishes to use a particular technique on a prisoner, the policy at the CIA is that each step of the interrogation process must be signed off at the highest level -- by the deputy director for operations for the CIA. A cable must be sent and a reply received each time a progressively harsher technique is used. The described oversight appears tough but critics say it could be tougher. In reality, sources said, there are few known instances when an approval has not been granted. Still, even the toughest critics of the techniques say they are relatively well monitored and limited in use.

One additional thought on your child-rapist comparison. The goals and expectations of questioning a criminal to build a case to prosecute them are quite different from the goals and expectations of questioning a high-value terrorism suspect. These enhanced interrogation techniques are not geared towards supporting a case for prosecuting terrorists, they are geared toward gaining intelligence to prevent future attacks and to enable more effective operations against terrorists still operating against us. To gain that information there is no "ah ha" information you can throw before them, no plan B to go along with to build a case against them. The detainee can, under your methods, simply decline to answer and we will have nothing to go on. That may help you sleep better at night but it doesn't do the same for me.

Posted by: Hacksaw on December 10, 2007 at 7:25 PM | PERMALINK

each step of the interrogation process must be signed off at the highest level -- by the deputy director for operations for the CIA. A cable must be sent and a reply received each time a progressively harsher technique is used.

Approval "at the highest level" did not make the holocaust any better, did it? How does the approval process change the simple fact that torture is being used? If anything, high-level approval makes it worse, it would seem, because it's not just the work of some "bad apples".

Posted by: JS on December 10, 2007 at 7:45 PM | PERMALINK

I've been waterboarded in training. I think it is torture. But plenty of my brethren who also went through the training don't.

Posted by: SJRSM on December 10, 2007 at 8:00 PM | PERMALINK

JS - that's too silly to spend any time on.

SJRSM,

As I think is clear from my previous comments, I have a great deal of difficulty when it comes to determining if waterboarding rises to the level of torture. Part of my hesitancy stems from the fact that we do this to our own folks in training. Given that you think it is torture, do you think we should not expose people to it in training? In effect you have stated that the government tortured you. How do you feel about that?

Posted by: Hacksaw on December 10, 2007 at 8:10 PM | PERMALINK

Without getting into specifics, I know a bit more about SERE training than the average bear, and there are a couple of things that set training apart, and frankly makes the comparison, well, silly.

First of all - in training you know it is your own guys who are working you over and that your life is in no real danger.

Second - you can quit. Walk away. Be done with it. A suspect does not have that option.

Third - in training there is a safeword, say it and it stops. There is no safeword for suspects being interrogated.

Posted by: Blue Girl, Red State (aka G.C.) on December 10, 2007 at 8:26 PM | PERMALINK

What she said

Posted by: SJRSM on December 10, 2007 at 8:30 PM | PERMALINK

Thanks Mike. Hubby has been through SERE, I have not. But you will appreciate this: To this day, when we are arguing about something, when one of us decides enough is enough, that word is said, and we stop fighting and laugh.

Posted by: Blue Girl, Red State (aka G.C.) on December 10, 2007 at 8:36 PM | PERMALINK

Hacksaw, what's silly is claiming that because we only torture after we have specific approval from "the highest level" that somehow makes us better.

Which is exactly what you said.

Posted by: JS on December 10, 2007 at 9:26 PM | PERMALINK

I recall what Winston Churchill said about something similar, regarding a fellow named Sekgoma almost exactly 100 years ago:

"... if we are going to embark on this sort of lawbreaking and autocratic action, where are we doing to stop? What injustice is there that would not covered by precedents of this kind? If we are going to take men who have committed no crime, and had no trial, and condemn them to lifelong imprisonment and exile in the name of "state policy", why stop there? Why not poison Sekgoma with some painless drug? No argument, that will justify [what we are doing would not send prisoners straight to hell]. If we are to employ medieval methods, let us at least show medieval courage and thoroughness. A dose of laudanum...no legal difficulties... no fear of habeus corpus..."

Posted by: theAmericanist on December 10, 2007 at 10:06 PM | PERMALINK

BG,RS

To be sure the conditions under training are not the same as the conditions under a true interrogation (although friends who have been through SERE say it comes pretty damned close). But are we now saying that the process of waterboarding in and of itself is not torture but rather the conditions in which it is applied?

Posted by: Hacksaw on December 10, 2007 at 10:06 PM | PERMALINK

Don't be obtuse. Strapping someone to a board and taking measures to fill the lungs with water is torture. Period.

Posted by: Blue Girl, Red State (aka G.C.) on December 10, 2007 at 10:36 PM | PERMALINK

Hacksaw is reaching for every sophistry he can find.

Yeah -- sleep deprivation while cramming for axams in college is not torture, Hack. That doesn't mean it can't be used as torture.

Posted by: JS on December 10, 2007 at 10:45 PM | PERMALINK

But are we now saying that the process of waterboarding in and of itself is not torture but rather the conditions in which it is applied?

I realize you are deliberately playing the part of a fucking moron, but perhaps a simple example will help you out: I can step into the boxing ring with a friend for a friendly round of sparring and punch him repeatedly in the face and I have not committed battery. If I walk up to that same friend on the street and punch him repeatedly in the face while he begs me to stop, then I have committed battery.

Similarly, if I ask my friend to pour a glass of water into my mouth it is not torture. If my friend attacks me, knocks me out, ties me to a board upside down and repeatedly pours glass after glass of water down my throat while I beg him to stop, it is torture.

Of course, I realize that right-wingers generally have a hard time grasping the concept of "consent."

Posted by: Stefan on December 11, 2007 at 11:03 AM | PERMALINK




 

 

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