Democrats Told About Torture Had Options


Michael Froomkin nails it, in my opinin. Speech on the floor is completely protected:

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

All this misses a critical aspect of our constitutional structure. Thanks to the Speech and Debate Clause there was a way for any Senator or Representative who wanted to blow the whistle to do so in a way that involved no risk of jail or fines – at worst they might have lost their security clearances (and even there the law is a little murky).

Article I, section 6 of the Constitution reads as follows,

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

(emphasis added)

The Speech and Debate clause has been interpreted to extend beyond floor speeches, e.g. to committee statements, but it unquestionably applies to floor statements. Thus, it would have been possible for Rep. Harmon, or Senator Rockefeller, or the others allegedly briefed to go to the floor, either during the times when members may speak on topics of their choice, or under one of the extraordinary mechanism for privileged statements, and denounce the Bush administration's determinate to torture helpless captives in secret offshore detention facilities.

I'm not saying this would be easy or politically painless. The political risks are obvious – and recall the Congress was being briefed not all that long after 9/11. But even without the national security angle or the political frenzy angle, there were also counterveilling issues of fundamental personal ethics As Rep. Harmon noted,

"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."

Serious people take oaths like this seriously and are right to do so; but before they took that second oath, they took a first one upon taking office in which they promised to "preserve and defend the Constitution of the United States." To the extent that the second oath allows the executive to muzzle members of Congress, it is unconstitutional under any theory, including not only the Speech and Debate clause, but also the Incompatibility Clause (which forbids members of congress from serving in the executive branch; a converse conclusion is that this clause forbids the executive branch from turning members of Congress into subordinates).

Duty to the constitution, and to humanity outweigh oaths of secrecy.

Go read the rest.


Ian Welsh December 9, 2007 - 8:35pm
( categories: Human Rights | USA: Congress )

-- that our Senators have a primary duty to defend the Constitution!
Do we even need to enumerate the various pieces of legislation shredding the Constitution which have been passed in the last few years?
-- and not repealed by the so-called Democratic majorities in the House and Senate?

Look, it is getting old, whipping up outrage every time more evidence of the complete complicity of the Democratic representatives and senators in the systematic dismantlement of the U.S. Constitution comes up.

Any sentient being long ago concluded that both political parties were working consistently to end the rule of law.

We haven't declared war on another country since December 7th, 1941; yet, we have been pretty constantly at war with a dozen or more enemies, each of which was going to end civilization as we know it unless we attacked them. Never mind all the lies about the putative enemies; the point is, the Constitution says only Congress can declare war.

What good is a Constitution which is not enforced?

It just doesn't change anything, that the Democrats were complicit in torture. What, is that news? They were complicit in an aggressive war which violated the United Nations charter, too. Is that going to be outrageous the next time it comes up?

Please, Ian. Our government is broken.

mmeo December 9, 2007 - 7:33pm

your government is broken. Nonetheless, there are levels of brokenness.

Ian Welsh December 9, 2007 - 9:42pm

It means that neither party can be trusted to uphold the Constitution or otherwise do the right thing. So, what to do? Go to a third party, or clean out the Democratic party and start over? The former isn't viable - but, of course, neither is the latter.

At least if the Democrats were being democrats, we wouldn't be in quite the mess we're in.


"Vanity, Vanity, all is Vanity."

Raja December 10, 2007 - 6:02pm

The motive of the sources of this report is to take the edge off the divulsion of the destruction of the videos. Yet if it is true that these lawmakers expressed no private reservations, they seem to be in a tight spot now. Why was what is so repulsive now not worthy of comment previously? They need to explain.

Steve LeVine, author
The Oil and The Glory (Random House)
http://oilandglory.com/

stevelevine December 9, 2007 - 8:30pm

... to the argument that, at the time, there simply was no allowance for anyone, much less a politician, to express anything but hyper-patriotic sentiments. I remember feeling like I had to bite my tongue a few times for pragmatic reasons. (They hate us for our freedoms?)

I agree though, they should explain their actions then, why it took so long for this to come out, and why they shouldn't be keel-hauled for having stood idly by.

Then impeach the Preznit.

ww December 11, 2007 - 8:42am

can understand the pressure at the time but not the continuation of silence and complcity.

Tina December 11, 2007 - 10:20am

they haven't figured out yet how to explain/justify their previous silence and complicity. A flip flop on any issue is never highly regarded even if the new position is a laudable one.

adrena December 11, 2007 - 10:41am

that they have to work so hard to come up with excuses? I swear there is a special excuses department we just don't know about yet. lol

Tina December 11, 2007 - 10:52am

Let's find a proper name for it. How about: "The Department of Regrettable But Politically Necessary Flip Flops", or another convoluted one, "The Department of No Longer Acceptable Former Positions".

I'm sure you can come up with better ones. :D

adrena December 11, 2007 - 11:01am

with The office of Political Expediency, but I really like your Department of No Longer Acceptable Former Positions"

Tina December 11, 2007 - 11:09am

Rep. Jane Harman (D-CA) took Pelosi's spot on the committee in 2003. It was only then that the administration told the committee chiefs that the techniques listed in the 2002 briefing "were actually being used." Harman, and not Pelosi, was briefed at the time. "Harman objected, which Pelosi thought was the right thing to do and would have done if she had been ranker," the aide says. Pelosi, however, did not sign her name to a letter Harman sent to the CIA that Harman sent that February after receiving the briefing. Harman has asked the CIA to declassify the letter, which she has described as expressing concern over the interrogation techniques put into place and warning the CIA against destroying any interrogation recordings. "Harman told her she was sending it and Pelosi agreed with that decision," the Pelosi aide says.

"Pelosi and Harman [are] on same page on this," the aide adds, contradicting my earlier read on Pelosi's statement.

So why was Pelosi quiet once she rotated in?

http://www.tpmmuckraker.com/archives/004869.php

Tina December 11, 2007 - 10:41am

Harman: CIA brushed off warnings on interrogation tapes


David Edwards and Nick Juliano
Published: Monday December 10, 2007

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Rep. Jane Harman, the California Democrat who warned the CIA in 2003 against destroying tapes of its agents using so-called harsh interrogation techniques against suspected terrorists, now says the agency brushed off her concerns over the tapes' preservation with a curt, "very unsatisfactory" response.

Whether the former ranking member of the Intelligence Committee pushed for more information on the interrorgation methods that sparked her initial concern remains an open question. Democrats are accusing the CIA of keeping them in the dark about plans to destroy videotapes, and Harman acknowledges that her memory is fuzzy regarding a classified briefing she participated in just after taking over for Nancy Pelosi as top Democrat on the committee.

"I can't really reconstruct the meeting -- again, which was highly classified -- because I took no notes. It was five years ago and this feeble grandma just ain't that good," Harman told NPR's Robert Siegel Monday.

In February 2003, Harman wrote to the CIA and urged them to preserve the tapes, which were destroyed in 2005.

It wasn't until the destruction of the tapes was publicly revealed last week that Harman disclosed her earlier warnings to the CIA. On Friday, Harman said the CIA "never responded to" her 2003 letter, although she modified that accusation Monday.

"I did hear over the weekend from a staffer that she thinks there was a response, very unsatisfactory, to my letter, and I'm eager to see if the CIA recognized then that what I said was important," Harman said on CNN's American Morning Monday. "They obviously ignored it in 2005."

more with links and video

Tina December 11, 2007 - 1:29pm

...necessary to eject would've been easy to get. Then they'd have spent 10 years fighting on their own to get the case to the SCOTUS. If a FOX inspired lynch mob didn't hang them first. And any lawyer who took the case would've ended up a lot worse off than Lynne Stewart.

Gordon December 9, 2007 - 9:35pm

that's not the case. Even at that time, white shoe law firms, the most prestigious in New York, were lining up to represent Guantanmo Bay "terrorists". They would have had the very best representation in the country.

And Pelosi was minority leader at the time. It is not clear to me that she could not have held enough members to avoid a 2/3 majority.

Even if she had, so what? What good have the Dems done inside?

Yeah, every step of the way, there was someone willing to make excuses about why now wasn't the time to fight.

There still are.

Ian Welsh December 9, 2007 - 9:46pm

...were expressly threatened by an admin employee (who lost his job over it, but only because he was too explicit).

Pelosi probably would have had the sympathy of the 147 Ds who voted against authorization. I doubt she would have gotten 60 votes. Not in 2002.

What good have the Dems done inside?

Are you seriously suggesting that we'd be no worse off if the R's had won the 2006 election?

Gordon December 9, 2007 - 10:04pm

I doubt this clause would protect any such whistleblowers - the Administration might simply have had to resort to charging them with "treason" under Article 3 of the Constitution.

Diodotus
http://www.elected-swineherd.blogspot.com

diodotus December 9, 2007 - 11:14pm

A Joint Investigative Committee Should Expose the Torture Coverup
By: Scarecrow Monday December 10, 2007 5:00 am

There is a simple way for Speaker Pelosi and Congressional Democrats to counteract the implicit blackmail to which they were subjected in Sunday's Washington Post. Go public. They should call the White House's bluff and immediately create a Joint Investigative Committee to commence public hearings on the entire history of US torture and interrogation practices under the Bush Administration.

Let's get it all out there: who ordered it; who sanctioned it; who knew about it and when; who opposed and who remained silent. Then let the chips fall where they may.

In Sunday's WaPo article, unnamed sources claimed that Democratic leaders, including Speaker Pelosi and the ranking members of the House and Senate Intelligence Committees were fully briefed on the CIA's harsh interrogation measures that had been ordered by the President. The article claims that except for Jane Harman, those briefed did not object. We don't know the truth yet; Rockefeller's response on the WaPo story was "contradictory", and as emptywheel notes, other responses to the original CIA story were not all reassuring. It's time we got all the facts out, in open public sessions.

The leaks that led to the WaPo story, and the Post's predictable willingness to run the story without identifying its sources or revealing their possible motives, come across as a threat to the Democrats that any honest investigation of the CIA's suspicious destruction of torture/interrogation tapes will wind up hurting not only CIA and Administration officials but also the Democratic leadership. It is a stark reminder that we are dealing with a criminal regime, and it now appears we are having thugs threaten Congress with embarrassment or worse if they dare to perform their oversight functions. Democrats should not allow themselves to be blackmailed. Go public. Get it out there. All of it.

more

Tina December 10, 2007 - 11:08am

...to CIA DO Chief Hung Out To Dry?.

Rodriguez was the one devising the interrogation techniques at the Counterterrorism Center - the exact stuff they were getting "briefed" about. Goss was House Committee chair throughout this period. Goss gets tapped to head the CIA, and brings Rodriguez in to be DO chief.

(And StopTheACLUBlog is giggling with glee that an admin leak has embarassed the Dems.)

Gordon December 10, 2007 - 11:54am

I ask again... when were the CIA tapes destroyed?
Larisa Alexandrovna

We are told that the CIA tapes were destroyed in 2005. Now, what tapes are these DOJ lawyers examining in September and October of 2007? Please take a look at this memo, HERE, do you see anything that says that the tapes were a). destroyed and b). in 2005?

I am sure someone has a logical answer to this. I am, unfortunately, not that person. Anyone?

http://www.atlargely.com/2007/12/i-ask-again-whe.html

Tina December 10, 2007 - 12:40pm

Gordon December 10, 2007 - 1:09pm

eom

Tina December 10, 2007 - 1:25pm

that the vastly larger issue is that whatever one thinks about the Dems and their pathetic non-attempts at checks and balances, America only has one valid broom, albeit crooked and gaptoothed, to clean out the stables right now, and one might be well-advised to consider the wisdom in lighting as little of that broom on fire as necessary before the sweeping is done. Burn the rest of the broom in 2009.


"The best-informed man is not necessarily the wisest. Indeed there is a danger that precisely in the multiplicity of his knowledge he will lose sight of what is essential."

- Dietrich Bonhoeffer

Escher Sketch December 10, 2007 - 12:18pm

if the dems continue to lay down they will be knocked out of the elections next year. Every time the dems reach forward they will be blackmailed, pressured or whatever with the idea of releasing more embarassing info. There will just continue to be hit pieces, there always will be for both sides. It is time to clean house and let the chips fall.

Tina December 10, 2007 - 12:47pm

the American public, which seems quite well aware that there's little to vote for, doesn't become confused by increasing volumes of inky chaff about which party is the most important to vote out.


"The best-informed man is not necessarily the wisest. Indeed there is a danger that precisely in the multiplicity of his knowledge he will lose sight of what is essential."

- Dietrich Bonhoeffer

Escher Sketch December 10, 2007 - 2:06pm

something to be concerned about which is why I think having someone or few stand up and start speaking out is important. The dems will lose some top leaders but it will be worth it to permanently cripple the republicans in office and expose their actions. Although I love the idea of starting a new political party: Americans for America :)

Tina December 10, 2007 - 2:31pm

Except: welcome back Ian! Where you been, man?

Charles Harris December 10, 2007 - 1:11pm

Why were they destroyed?

Was somebody interesting in the room? Rummy? Cheney? Cancer Man from the X-Files? The thing that keeps coming up is that torture, specifically, keeps getting ordered from the top in a micromanaging way. This is really sick, and I mean that in a sexual way. Next time I'm voting the Furry Party all the way down the ticket.

More pedestrian, of course, is the the CIA guys were actually contractors, not agency employees. A lot of CIA projects now are a CIA type signing checks for a bunch of contractors doing the work.

Forget it, Jake - it's AmnesiaTown

Tonsure Wimple December 11, 2007 - 5:00am

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