Baseball Crank
Covering the Front and Back Pages of the Newspaper
April 23, 2009
WAR/POLITICS: Nancy Pelosi Was Briefed On Waterboarding But Didn't Inhale

One of the occupational hazards of partisan politics is attacking the other side for something people on your own side knew about or participated in. Of course, that's politics; but it becomes a serious problem when you raise the rhetorical temperature to the point of calling your political opponents war criminals ... and it turns out your own people knew about the "war crimes" and didn't see anything wrong with them at the time, or at least didn't act as if they did. It's a pretty clear sign that they don't believe it now, either - but try telling that to the people who have bought the "war criminal" bill of goods and now find out that you did what they consider the equivalent of sitting in camp construction meetings with Himmler and not making a peep.

So we find that House Speaker Nancy Pelosi, despite her angry denials, has to face up to having been briefed back in 2002 on the CIA's 'enhanced' coercive interrogation techniques:

In September 2002, four members of Congress met in secret for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody. For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi (D-Calif.), was given a virtual tour of the CIA's overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk.

Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said.

Pelosi's laughable defense is now to admit that she was briefed on the Bush Administration having obtained Office of Legal Counsel memos on waterboarding but she thought they got those memos but didn't actually intend to use them:

Pelosi denied these claims. "We were not -- I repeat -- were not told that waterboarding or any of these other enhanced interrogation methods were used. What they did tell us is that they had . . . the Office of Legal Counsel opinions [and] that they could be used, but not that they would," she said.

She said some officials, such as Goss, who went on to become CIA director, argued the lawmakers should have known the waterboarding would be used because they were told it was a legal practice. But she said they had no way of knowing that for certain...

Yes, I guess George W. Bush was ordering up OLC memos as an intellectual exercise, so he could kick back and read some dense legal reasoning to unwind at the end of a long day of not using the anti-terrorism tools at his disposal on captured Al Qaeda leaders. That's credible, right?

Pelosi's other tactic is to claim that she was sworn to secrecy so she couldn't do anything anyway:

[T]hey were then forbidden from talking about what they had learned so they could not work to outlaw the practice.

She summed up the briefings this way: "This is what they're doing. That's all they do. They don't come in to consult. They come in to notify. They come in to notify. And you can't -- you can't change what they're doing unless you can act as a committee or as a class. You can't change what they're doing."

Uh, didn't she just say they were briefing her on what they were not doing?

Now, when Congressional leaders are sworn to secrecy for national security purposes, they better have a very good reason for breaking that pledge. But when they learn about something that the Executive Branch is doing, claims is legal but ought to be made explicitly illegal, can the Speaker of the House be powerless to introduce legislation stopping it? Is our Congress that powerless if it thinks that tyranny or torture is actually afoot? As it happens, the Framers of the Constitution, being far wiser and more courageous than Nancy Pelosi, already thought of this problem and thoughtfully even gave her explicit instructions that in such a situation she could speak out without fear of prosecution. It's right there in Article I of the Constitution (Joe Biden, if you're reading this - that's the one that deals with Congress):

Section 6. 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.

Under the Speech and Debate Clause, if Speaker Pelosi was told that the Executive Branch was committing war crimes, she has an absolute constitutional privilege to speak about that on the floor of the House, as well as to introduce legislation to stop it.

Unless, of course, it wasn't really a war crime at all. Unless, of course, it would have been too politically risky in 2002 to come out against a hard line on interrogation of terrorists.

There is deep foolishness of many kinds in the desire to criminalize the Bush Administration's efforts to protect the nation. The more Speaker Pelosi and her party insist that waterboarding is a war crime, the more they have to distort the evidence to fit their narrative, the harder it is to justify their own acquiescence, their actions that spoke louder than words when they learned what was being done to keep the nation safe. And the harder it will be for those who watched them nod their heads one day and turn Inquisitor the next to do their jobs with the same zeal. Back when the real Nazis stalked the land, there were indeed people who sat down and tried to do business with them, and they almost brought the West to ruin; but even in the direst and darkest hour, when he had been called upon to replace those people after years of enduring their mockery, Winston Churchill gave a warning that today's Democrats would have been wiser to heed:

I am not reciting these facts for the purpose of recrimination. That I judge to be utterly futile and even harmful. We cannot afford it. I recite them in order to explain why it was we did not have, as we could have had, between twelve and fourteen British divisions fighting in the line in this great battle instead of only three. Now I put all this aside. I put it on the shelf, from which the historians, when they have time, will select their documents to tell their stories. We have to think of the future and not of the past. This also applies in a small way to our own affairs at home. There are many who would hold an inquest in the House of Commons on the conduct of the Governments--and of Parliaments, for they are in it, too--during the years which led up to this catastrophe. They seek to indict those who were responsible for the guidance of our affairs. This also would be a foolish and pernicious process. There are too many in it. Let each man search his conscience and search his speeches. I frequently search mine.

Of this I am quite sure, that if we open a quarrel between the past and the present, we shall find that we have lost the future. Therefore, I cannot accept the drawing of any distinctions between members of the present Government. It was formed at a moment of crisis in order to unite all the Parties and all sections of opinion. It has received the almost unanimous support of both Houses of Parliament. Its members are going to stand together, and, subject to the authority of the House of Commons, we are going to govern the country and fight the war. It is absolutely necessary at a time like this that every Minister who tries each day to do his duty shall be respected; and their subordinates must know that their chiefs are not threatened men, men who are here today and gone tomorrow, but that their directions must be punctually and faithfully obeyed. Without this concentrated power we cannot face what lies before us. I should not think it would be very advantageous for the House to prolong this debate this afternoon under conditions of public stress. Many facts are not clear that will be clear in a short time. We are to have a secret session on Thursday, and I should think that would be a better opportunity for the many earnest expressions of opinion which members will desire to make and for the House to discuss vital matters without having everything read the next morning by our dangerous foes.

Once upon a time, the Bush Administration did not seek to drag members of the prior Administration into the dock for their role in leading us to the pass of September 11. Once upon a time, the threat - or at least the political climate - was clear enough that Speaker Pelosi saw the wisdom in not broadcasting what was being done to our dangerous foes. Today, drunk on their own rhetoric, complacent that the threat has passed, confident that political power will never again pass from their hands, the Democrats ignore Churchill's advice at their peril. But the genie has escaped the bottle, and the questions won't stop. If the writing of the OLC memos was a war crime, then Nancy Pelosi can't escape her role in aiding and abetting that crime by saying she knew about the memos but didn't inhale them.

Posted by Baseball Crank at 6:16 PM | Politics 2009 • | War 2007-14 | Comments (16) | TrackBack (0)

Pelosi is the perfect American. It was too politically risky to come out against torture in 2002, so she kept her mouth shut while the criminals tortured.
Is there anything that Americans aren't afraid of?

BTW, didn't we learn anything from criminalization of Saddam Hussein's efforts to protect his nation? What we he supposed to do, make tea and crumpets for those who tried to overthrow him?

Posted by: Berto at April 23, 2009 7:29 PM

Also, Pelosi's defense is she trusted the Bush Administration?
Yeah...good one. Let me guess, she didn't realize Cheney and Rove worked for them. (LOL)
As they toss her ass in jail for helping break the law, a beaten down American middle-class America knowingly asks about her trusting the Bush Admin, "How'd that work out for ya?"

Posted by: Berto at April 23, 2009 7:59 PM

Crank, only you could look at the cast of characters here and focus on Nancy Pelosi as the errant one. did she f**k up and lie about it? Sure. But if that is the standard, then from Bush down, there are plenty of other targets to be shot at.

Posted by: Magrooder at April 23, 2009 9:11 PM

I forgot to comment on the funniest thing you've ever written. 9/11 was Clinton's fault! Hilarious, just hilarious.

Posted by: Magrooder at April 23, 2009 9:13 PM

So far she seems to be getting away with it.

You can fool all the people some of the time & some of the people all of the time & 2 outta 3 ain't bad.

I had a boss who used to say in times of crises which were brewing: "Why wasn't I [he] informed before this issue had risen to this crisis point?" When he was shown that he had been CCed on all the memos dealing with the crisis up to then, he'd reply "Ah, but why weren't these memos ‘flagged’? Do you know how many memos wind up on my desk?"

On the other hand, when he was informed about potential crises which we felt were under control but which he might need a "head's up on", he would say, "How come you guys have to bring every piece of s**t to me? Can't you solve some things yourselves?"

When there seemed to be no way to solve a then current crisis to our advantage, he would deny having been informed even if he had sat in on strategy meetings about the crisis, on the theory that he had not been given the truth, the whole truth, & nothing but the truth up to then.

Wait, come to think of it, I had many bosses like that.

Posted by: From Inwood at April 23, 2009 9:15 PM

Magrooder - Bush's people aren't running around calling this a war crime. Their position has been consistent from Day One. Very much unlike Pelosi.

I have been consistent on Clinton and 9/11: I think his policies were clearly disastrous with the benefit of hindsight, but I don't think it would be fair to blame him without consideration of the broader political culture of the time, in which the bipartisan majority was culpable of nonfeasance. But there's no question that Bush could, if he had been as petty and vindictive as Obama, have sought to hang a lot more blame on Clinton.

Posted by: Crank at April 23, 2009 11:36 PM

"Under the Speech and Debate Clause, if Speaker Pelosi was told that the Executive Branch was committing war crimes, she has an absolute constitutional privilege to speak about that on the floor of the House, as well as to introduce legislation to stop it."
Disclosing classified information is protected under Gravel I believe, but isn't there a bit of a problem with " They shall in all cases, except treason,".

Given a possible loose definition of Treason, isn't it possible there would be a problem with saying this on the house floor? Protected in giving the information yes, but I don't believe protected from a grand jury investigation into treason. Or, as what happened to Gravel, the activities off of the House floor of the classified information.
I don't believe this part is settled law, but I could be wrong. Track down a ConLaw person, ask them if Speech and Debate covers treason?

"the Bush Administration did not seek to drag members of the prior Administration into the dock for their role in leading us to the pass of September 11"
Wasn't aware there were possible crimes. That's one difference now, there are. That's another difference - you are solely looking at it for Political group X vs. Y, instead of crimes.

Here's your comment from not too long ago.
"There are standard procedures in place to handle crimes committed by public officials: impeachment for high officials, courts-martial for members of the military, and DOJ prosecutions for civilians at any level of government. We won't see those here - aside from the courts-martial we've already had for people like the nitwits at Abu Ghraib - because there isn't evidence to support the violation of any particular criminal statutes"
Now, we're rapidly getting towards having evidence.
Crimes, if committed and with enough to be able to bring to a grand jury, should be investigated - right?

Posted by: Dave at April 24, 2009 3:24 AM

Thanks for reminding me about "the nitwits at Abu Ghraib". While the "few bad apples" were being tried and jailed, tough-guy Dick Cheney kept his mouth shut about what is or isn't torture. Now that the noose has been loosened enough to get his neck, he's crying about declassifying info.
I guess the new Conservative mantra will have to be, "No one could have foreseen that Dick Cheney is really a lying coward."

Posted by: Berto at April 24, 2009 11:11 AM

Look, Pelosi didn't have the political courage to do the right thing when she first learned of the torture. This does not excuse it, but the Rovian, take no prisoners, my country right or wrong atmosphere enforced with Taliban-like efficiciency by the GOP and right-wing radio unquestionably created an atmosphere in which the level of courage required was greater than Pelosi had.

But, she is not the only one now admitting the undeniable -- Bush and Cheney authorized torture in violation of US and international law. The fact the she is a flawed messenger does nothing to alter the truth of the message.

Posted by: Magrooder at April 24, 2009 12:14 PM

Dave - OK, try me: what statutes, what conduct charged as violation of those statutes? I simply don't see anything that would be the stuff of an ordinary criminal prosecution. What we are dealing with instead is disputes about what the law is, and efforts to criminalize those who took a legal position not shared by the people currently in power.

Posted by: Crank at April 24, 2009 12:55 PM

Also, I admit as well that I do not know the answer to this in terms of history and precedent, but my reading of the plain language of the Speech and Debate Clause is that the treason or breach of the peace language doesn't modify or limit it, those only limit the preceding clause.

Posted by: Crank at April 24, 2009 12:58 PM

According to my references, the atmosphere in which Pelosi has insufficient courage is 78% nitrogen, 21% oxygen, and 1% trace gases by volume.

Posted by: Paul Zrimsek at April 24, 2009 1:03 PM

I think the reason for doing something illegal might be up to debate (for instance, "we outed a CIA agent because her husband was questioning our call to war" might be a reasoning debate issue) but doing something illegal (outing a CIA agent) is most definitely not a debatable issue. Similarly, "we were scared" or "we were trying to find links between Iraq and al Quaeda we could use to justify the invasion of a sovereign nation" might be valid reasons in some ideologic eyes to use torture, but committing torture is still illegal under US and International law.
But debate we can, if they'd just release EVERYTHING about the "War on Terror". I look forward to your long screed requesting such.
Then I'll let you take the conservative side of the debate: We condone torture (sometimes--we'll still wet our pants if someone like Saddam uses it) and we don't believe in the rule of law (unless it can be wielded against someone from "the other team").
BTW, I see you still believe the opposite of a Republican is a Democrat. As I've said for years, "Slow on the Uptake" should replace "In God We Trust" on all US minted coins.

Posted by: Berto at April 24, 2009 5:20 PM

Given that the people who leaked the NSA wire-tapping program and the financial tracking program are still living their lives as free men, I doubt that the Speaker of the House, or any member of Congress, had much to fear about being brought up on treason charges if they objected to the CIA's interrogation methods and sought to criminalize their methods.

Posted by: SFC B at April 24, 2009 5:43 PM


To answer your questions to Dave, try:

18 U.S.C. Sections 2340-2340B (essentially, making it a crime to torture or conspire to commit torture; with torture defined in the statute).

The UN Convention on Torture signed by your secular god, Ronald Reagan. See also,

Posted by: Magrooder at April 24, 2009 9:26 PM

"OK, try me: what statutes, what conduct charged as violation of those statutes?"
Yah, Magrooder got part of it.
(18 U.S.C. section 2340), combined with rulings that Guantanamo is US soil
(18 U.S.C. section 2441)
Now, one of the things President Obama has done is immunize the low levels actors, and is likely to do so in the future as long as they were within the legal guidlines. That, combined with the 2006 law, makes it unlikely anyhow.
And it's not a dispute about what the law is, it is a dispute about if waterboarding is torture. Which either could have been cleaned up for a law in 2003 - really, this would have been much easier - or could be now by jury.
One of the things that it would hinge on would be if there was sufficient evidence that the initial determination was torture(or if, at least, this was available), or was otherwise given in bad faith and only provided to give legal cover. That's why really, for now, only the lawyers are being spoken about.

It's the difference between "Please tell what is legal" or "Tell us thing which we are doing and want to do is legal". Have you read Zelikow's take on this?

The Senate Armed Services Report is good as well.

Part of this is based on the CIA Inspector General’s review, I think from 2004. If he discovers that what was allowed went beyond the legal proscriptions(which is possible), that is trouble. Especially if it works the way up the chain. We're now getting to be:
1) no investigation
2) investigation but absolutely no prosecution
3) investigation, and follow the law

I believe the Administration wants something between (1) and (2), but it's not being given much allowance for that from anywhere in the idealogical spectrum. It's either (1) or (3), with bonuses from either side of 'we can do what we want because we're scared' and 'never do anything because we're evil'.

"is that the treason or breach of the peace language doesn't modify or limit it"
As to Treason - I agree that it likely doesn't limit, and I'm light years from where you are regarding law. I'd also believe that they could be in a rough legal spot, depending on the view taken.
Political considerations alone likely would have killed it, but the possibility of fighting a Treason charge alone could have.

"the atmosphere in which Pelosi has insufficient courage is"
That does vary at sea level and high altitudes, but don't worry, she doesn't have them there either, or if you put her in an oxygen chamber. Just wanted to cover the bases.

Posted by: Dave at April 25, 2009 3:58 PM
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