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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:

  1. 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:

  1. 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.

Let's explore:

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.

Originally posted to PiRierran on Thu May 14, 2009 at 02:14 PM PDT.

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Comment Preferences

  •  I'm fine with holding folks accountable (3+ / 0-)
    Recommended by:
    kurt, linkage, bfitzinAR

    as accessories after the fact.  But the level of guilt is related to the level of responsibility.  Indict, prosecute, and convict the major architects of the policy, and THEN go after the accomplices.

    "The extinction of the human race will come from its inability to EMOTIONALLY comprehend the exponential function." -- Edward Teller

    by lgmcp on Thu May 14, 2009 at 02:18:13 PM PDT

  •  She was briefed allright, but (5+ / 0-)
    after the fact, and not told they were waterboarding:

    Water boarding was happening before Pelosi was briefed- this from Emptywheel (excerpted):

    March 28, 2002: Abu Zubaydah taken into custody.

    March 31, 2002: Abu Zubaydah flown to Thailand.

    April 2002: CIA OGC lawyers begin conversations with John Bellinger and John Yoo/Jay Bybee on proposed interrogation plan for Abu Zubaydah. Bellinger briefed Condi, Hadley, and Gonzales, as well as Ashcroft and Chertoff.

    May 8, 2002: Jose Padilla taken into custody based on material warrant signed by Michael Mukasey and based on testimony from Abu Zubaydah.

    Mid-May 2002: CIA OGC lawyers meet with Ashcroft, Condi, Hadley, Bellinger, and Gonzales to discuss alternative interrogation methods, including waterboarding.

    July 10, 2002: Date of first interrogation report from Abu Zubaydah cited in 9/11 Report.

    July 17, 2002: Tenet met with Condi, who advised CIA could proceed with torture, subject to a determination of legality by OLC.

    July 26, 2002: Bybee tells CIA waterboarding is legal. CIA begins to waterboard Abu Zubaydah.

    September 4, 2002: Porter Goss and Nancy Pelosi briefed on OLC memos, not told Abu Zubaydah had already been tortured.

    Skunks Stink. Republicans Lie. It's their nature.

    by azureblue on Thu May 14, 2009 at 02:34:27 PM PDT

  •  Good points and I'm glad you (3+ / 0-)
    Recommended by:
    kurt, linkage, cyeko

    brought them up.  And yes, a full investigation - no matter where it leads - is the only solution.

  •  Pelosi's a mindless career politician... (1+ / 0-)
    Recommended by:

    who thinks of nothing more than staying in office. I didn't have much of an opinion of her, until I saw that freaking smile when they passed the TARP, or Total American Rape by Politicians.

    If you're grinning like an idiot when the financial system of the country has so destroyed what little is left of it, there's no doubt in my mind that she's clueless about what America's problems are.

    She's covering her own ass. I believe Russ Feingold over her any day. And Russ made sure to note his objections to the proceedings, because he's NEVER compromised his principles.

    The career pol's jumped on the bandwagon, fearing other attacks, and appearing 'weak.' It's why virtually all of them voted for the 'patriot' act.

    And now, she's a worm on a hook. It was the plan all along to bury this - to involve enough from both parties, to ensure that it appeared legitimate, and if not, buried by Bushes opponents.

    Apologizing for a career criminal doesn't in any way get this moving forward.

  •  Thank You - N/T (0+ / 0-)

    "Upward, not Northward" - Flatland, by EA Abbott

    by linkage on Thu May 14, 2009 at 03:47:20 PM PDT

  •  What of Repuplicans Briefed ? (1+ / 0-)
    Recommended by:

    If Republicans understood that they were being told that torture was being done, then they are much more guilty and accountable for crimes of torture than those who claim not to to have understood what was being told to them by the CIA in the briefings.  Good that the Republicans have come forward and admitted  that they have committed a crime.

    •  But remember, publicly supporting something isn't (1+ / 0-)
      Recommended by:

      the same as being a part of it. A NAMBLA supporter isn't necessarily a pedophile. An NRA member isn't necessarily a domestic terrorist.

      Just because republicans may have been slightly more aware than their democratic counterparts doesn't necessarily make them criminals.

      Now, if they worked to help design the interrogations, the legal rationale that was known to be flawed, or, as is far more likely, designed the political cover up... Well, in those cases, they'll probably lie under oath and go down for perjury.

      The thing about the Bush administration was its secrecy fetish. As much as we may abhor some of these republicans, they were probably kept in the dark but were trusting of Bush.

  •  How's that dry powder, Nancy? (2+ / 0-)
    Recommended by:
    Miles, kurt

    Ya might want to break some of it out right about now.

  •  Pelosi is a quizling (1+ / 0-)
    Recommended by:

    Either she was briefed and failed to object, or she failed to have the rudimentary imagination to grasp what the Bush administration was about and what it might try to do, which in many ways is even more contempt worthy.

    At every step of the way she has failed to go after illegality and high crimes.  She is a pathetic enabler of a fascist regime.

    Now I'm watching Obama inherit the empire and he and Pelosi and Reid would rather ignore the core illegality of the last 8 years and "move right along" with their precious little legislative agendas.

    But here's the problem... issues like health care and issues that ordinary people care about can't be addressed merely by legislation, not when the core structural problems of corporate controlled government and institutionalized illegality (such as torture) and institutionalized subservience of the legislative branch to the executive are not addressed.

    Executive branch illegality represents these issues.  If we can't prosecute the top level criminals then the legislative agenda won't effect real change.

    So I'm watching Pelosi and Obama blow up the agenda that should matter, refounding the American state through war crimes prosecutions and strengthening of the legislative branch, all so that they can pass Potemkin village versions of health care reform that leave the corrupt corporate government system absolutely untouched.... and protect their own sorry record too.

    "No special prosecutor for war crimes" means that "the agenda" they are trying to protect is a farce.  It will not be worth the paper it is printed on.    

    No matter how bad things get, you got to go on living, even if it kills you. -- Shalom Aleichem

    by Miles on Thu May 14, 2009 at 10:22:31 PM PDT

    •  by which I mean Quisling (0+ / 0-)

      All historical analogies are imperfect but this one works well enough.

      No matter how bad things get, you got to go on living, even if it kills you. -- Shalom Aleichem

      by Miles on Thu May 14, 2009 at 10:25:22 PM PDT

      [ Parent ]

    •  quite the opposite (1+ / 0-)
      Recommended by:
      wilderness voice

      "Either she was briefed and failed to object, or she failed to have the rudimentary imagination to grasp what the Bush administration was about and what it might try to do, which in many ways is even more contempt worthy."

      It is this GOP-pushed meme that this diary is written to correct. The GOP uses innuendo and the creation of bogeymen (and bogeywomen) (and jokes about bogeywomen being bogeymen) to attempt to make us turn on each other with suspicion instead of looking clear eyed for the source of this mess (Cheney)

      •  I know what the diary is up to... (0+ / 0-)

        ...and in trying to call a law based left wing critique a right wing critique it is making a mistake.

        It matters because what's holding back prosecution is Democratic complicity.... something Cheney worked hard and successfully to ensure... but something that Pelosi et al deserve responsibility for failing to realize and extricate from.

        No matter how bad things get, you got to go on living, even if it kills you. -- Shalom Aleichem

        by Miles on Fri May 15, 2009 at 09:32:45 AM PDT

        [ Parent ]

        •  My point is that I don't believe we really have (0+ / 0-)

          "left wing complicity" as you are so sure of. Rather I am pointing out a number of ways that that likely do not result in democrat's complicity.

          This necessitates an investigation, but we should be prepared for many findings of "no wrongdoing" on the part of many politicians.

          •  You still don't get it? (0+ / 0-)

            Pelosi is not "left wing".   She is part of the center right national security consensus that is not willing to prosecute torture or executive illegality of any kind.

            She probably would not be guilty of more than looking the other way... just as she took impeachment of the table in regard to the war.

            But it is she and Reid, more than anyone, who will impeded prosecution of Bush admin war crimes.....  

            The Repub meme is trying to ensure that outcome.... those of us on the left are pointing out that they are likely to succeed.... and your diary is saying that THEY (the repubs) are the problem, when in fact they are speaking the larger truth of her complicity.

            If only she would admit her guilt/complicity, plead guilty to reckless indifference, we could have prosecutions of more important sins.   But in denying that she enabled the Bush administration, she is highlighting for the world that she IS one of the guilty parties, and informing you and me that there will be no prosecutions.

            The Republicans are daring her to own up to her role, and she is in full denial mode... full "move on folks" mode.... just as they want her to be.... ensuring no prosecutions will happen.

            No matter how bad things get, you got to go on living, even if it kills you. -- Shalom Aleichem

            by Miles on Fri May 15, 2009 at 11:22:37 AM PDT

            [ Parent ]

            •  and I respectfully disagree with your point that (0+ / 0-)

              she was complicit in anything. I disagree that the idea of her being an enabler of the Bush administration if a foregone conclusion. I disagree that she has any necessary obligation to admit that she is a guilty party.

              •  Listen to her interview today (0+ / 0-)

                on the front page of the NY Times.

                She doesn't deny knowledge, although she does claim she was misled.  But her basic response was classic Dick Cheney:  "I had other priorities."

                Yes she did have priorities other than prosecuting war crimes.... and she still does.

                It's the sign of a small mind and a warped soul, unable to see or advance a larger vision of America, counting petty legislative victories as "successes" and imagining that they constitute the sum of her moral responsibilities in the world.

                No matter how bad things get, you got to go on living, even if it kills you. -- Shalom Aleichem

                by Miles on Fri May 15, 2009 at 11:31:09 AM PDT

                [ Parent ]

  •  GOP lies on detention and far (3+ / 0-)
    Recommended by:
    rlharry, wilderness voice, PiRierran

    Here's your handy dandy guide for tracking all the Republican lies about detentions and torture.

    1. We didn’t waterboard anybody. Wrong.
    1. Waterboarding isn’t torture. Wrong.
    1. We didn’t break the law. Wrong. Title 18 of the U.S. Code, the UCMJ, the Geneva Convention....Even Reagan threw cops in jail for waterboarding prisoners.
    1. The purpose of the torture was to prevent terror attacks. Nope. Several sources have established that the purpose was to prove a link between Iraq and terrorism in time for the 2002 elections.
    1. The torture program actually did stop attacks, including a plot against LA. Already debunked.
    1. Stopping the torture program puts us at risk. Wrong. Why did the Bush gang stop it in 2004, then?
    1. Pelosi knew about the whole thing. Nope. That was already shot down by the CIA and by other lawmakers who were also briefed. Also, the CIA itself lied about the briefings on the interrogations.
    1. Pelosi could have stopped the torture program. Wrong: the Bush gang made clear time after time that they intended to ignore any Congressional input with respect to any issue which, in their view, impinged on national security. And she didn’t know anyway.
    1. The torture program is justified under the doctrine of protecting sources and methods. Even Bob Barr shot that one down.
    1. Cheney’s effort to defend torture is on the same moral level as Gore’s effort to combat global warming. Um, yeah.
    1. Stopping the torture means we’re not supporting our troops. Nope. Actually the torture program itself is endangering our troops, as our generals confirmed.
    1. Talking about this torture program makes America look bad and fosters terrorism. No, lying and concealing makes us look bad.
    1. The torture proved the Iraq-terror link. Nope. The guys who stated that, under torture, later admitted they lied – just before one mysteriously died in prison.
    1. Those Guantanamo prisoners are the worst of the worst. Um, no. Most were grabbed off the street by bounty hunters who had no idea who they were grabbing – if there were evidence against them, Bush would have taken them to court.
    1. There isn’t any exculpatory evidence against these guys. Wrong – Bush illegally hid it.
    1. The Gitmo prisoners must stay there because bringing them into the U.S. is too dangerous. Nope. You know how many really dangerous prisoners we already have?  

    And most of these lies, by Republicans who worked for the Bush Administration, were debunked by.... Republicans who worked for the Bush Administration.

    And this is just what we've caught them at, since the grownups took over in January.

    When a group of people tells you one proven lie on a topic, you start to disbelieve them just a bit. But sixteen, and counting?

  •  Not sure if it's relevant (0+ / 0-)

    But it was a civilian agency, not a military organization, briefing a member of congress. Much of your commentary still applies.

    Corollary to Clarke's Third Law: Any technology distinguishable from magic is insufficiently advanced.

    by krow10 on Fri May 15, 2009 at 05:54:27 AM PDT

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