The right wing has trotted out a wonderful chess tactic on the torture debate. Specifically, I am hearing more and more on various media, "Nancy Pelosi was Briefed!" such as here and here, and I have even seen appended to this "and she assented".
So how can all this jibe with this?
So how can both of these situations be true? Just as importantly, what information will we need to know whether Pelosi (or anyone) is criminally culpable for torture.
Well let me give you a little background in military briefings, and deconstruct this enthymeme of the right.
The idea that briefing a congressperson immediately transfers responsibility for the content of the briefing contains a huge number of hidden assumptions. Let's deconstruct the two most critical assumptions one by one.
The assumptions are as follows:
- The briefing actually contained enough information about the Enhanced Interrogation Techniques (EIT's) for Pelosi to understand what was actually going on.
Now, we can assume that if she knew what was really going on, she would have a moral obligation to challenge it. This leads to assumption two:
- Pelosi had an avenue, either at the time of the briefing, or at some point afterwards, that she could use to challenge the use of the EIT's by the military.
It requires both of these hidden assumptions to be true before we can really hold any senator or congressmember criminally liable for the EIT's.
Notice that, where it is discussed by aides, we are told that Pelosi was given a "secret briefing". This is important. Why? Because the memos detailing the EIT's were classified as "top secret". It is very common for carefully redacted 'executive summary' briefings to be developed for senior leadership, but carefully stripped of technical details, called 'the weeds'. Without a transcript of what was actually said, and more importantly, the slides used in the presentations, we are missing some critical pieces of information.
We don't know what classification the briefing was compared to the details of the EIT's. If the EIT details were classified at a higher level than the briefing, they could not have been discussed. In that case, even if Pelosi asked for more details on techniques, the response would be "Sorry Ma'am, that's beyond the scope of this briefing".
Just as importantly, we don't know what the context of the presentations was. If waterboarding as brought up, it is entirely possible that it was presented as "selective application of splashing a detainee in the face with water or some other liquid" with important caveats such as "the liquid will not be above 120 degrees to eliminate the threat of causing burns" and "the liquid will be free of acids, caustic agents or other irritants to prevent injury to the detainee". While technically waterboarding fits into the scope of that description, it is highly misleading.
Now, here is a comment on the nature of military briefings themselves. Since Pelosi is neither a subordinate of any military officer, nor is she executing a mission under the auspices of the military. This rules out the brief being a staff or mission brief. Since she also lies outside the military chain of command, she would not be in a position to make a decision. This leaves only an information briefing. The idea that she would have been asked to 'approve' any kind of torture after an information briefing isn't how the military does business.
This also creates what I like to call a 'legal option' dilemma. Being a principal party to leaking state secrets carries heavy penalties. Since Congress operates almost exclusively in the public eye, revealing classified information would require Pelosi to break the law. Being forced to choose between two illegal options (abet torture by staying silent or leak classified information) is a non-choice.
So looking at assumption 2, what were the limits on Pelosi's ability to do anything?
We can start with the constitution: article 2, section 8, items 11 and 14 refer to the powers of congress to regulate the military, as well as govern 'captures on land and sea'. These are the two principal ways congress weighs in on detainee treatment. Neither the speaker of the house, or any subset of the congress short of the entire body, has any empowerment whatsoever to control the actions of the military. The chess game is simple: If key leaders can be 'briefed' on something, but they are prevented from bringing an issue up to the full congress, then the military can do what it wants. Even calling the SecDef to protest is unlikely to generate any results.
Where does all this lead?
Simple. This reeks of a shallow and poorly-executed CYA attempt by the bush administration to try to pull the same scam that Nigerian princes do all the time. Create enough suspicion that someone broke the law that they won't want an investigation, and use that throw lots of 'suspicion' around. I find far more likely that this is was a briefing that 'technically' contained information about EIT's in the same way that the word 'technically' is used to talk about virginity. It is thinly veiled BS by the republicans, targeted at liberals to cause infighting, and liberals are eating it up.
What is the solution?
Independent investigator (prosecutor). I like subpoenas a lot, because perjury carries stiff penalties, and even someone who has been given immunity from prosecution can still be imprisoned for lying under oath.
Even behind a wall of classification, affidavits made under oath, view graphs of presentations, logs, and such can be used to construct clear pictures, not only of "who knew what when" but to what extent the Bush administration made an end run around the law.
Let's not forget that even at Nuremburg Nazis were both convicted and acquitted, and the same is true for other tribunals like it. Simply touching or being in the proximity of poison does not make one a poisoner. Likewise a doctor has not violated the Hippocratic oath in prescribing a medicine if the pharmacist fills a tainted prescription.
If I were Pelosi I would call for an investigation to start now. I strongly suspect she has nothing to fear, either from a US special prosecutor or the Hague.
Now, anyone in congress who worked on the program as an architect... now that is a different story. But honestly, approaching this in the manner described above will sort the 'well intentioned operatives' from 'bad apples' as it were without much trouble.