In an earlier diary I alluded to the possibility that, with so many stories on torture and tapes hitting at once, it would be easy for details to be lost.
One example of a buried lede that seems determined to stay buried is found in the Washington Post story by Warrick and Eggen (assists White, Pincus and Tate) about the Congressional briefings on torture. Sources for that story seem to have had a virtual laundry of goals, but in the efforts to frame the story in a way that makes sources comfortable that "their side" has been told, WaPo flits right past the aspect of the story that shows unequivocally that the Bush administration was breaking the law in its briefings.
We are a full 12 paragraphs into the story before we learn:
U.S. law requires the CIA to inform Congress of covert activities and allows the briefings to be limited in certain highly sensitive cases to a "Gang of Eight," including the four top congressional leaders of both parties as well as the four senior intelligence committee members. In this case, most briefings about detainee programs were limited to the "Gang of Four," the top Republican and Democrat on the two committees
(emph. added)
Why have Reid and Pelosi both remained so silent in light of the revelation of numerous prima facie violations of law by the Executive, spanning a period of years?
Were briefings given more widely than has been acknowledged such that there is a reluctance to share the names of those "in the know" on torture?
Do the Nixonian questions of who knew what, and when, make the most powerful Democrats in Congress nervous?
Is it that 7 years into the Bush administration, Congress and the fourth estate simply agreed that the only aspect of "law" that survives in this nation is dicated to the professional stenographers at the Department of Justice, who then gamely hike their skirts, cross their knees and lick the tips of their No. 2s, waiting to serve as scriveners for the Torture 2.0 Talkingpoints that spring from that unlikeliest of muses, George W. Bush?
Or is it that the Democrats in Congress are simply not able to count to 8?
For those who can count, while Reid and Pelosi remain incredibly silent, let’s take a look at what should have been involved.
The National Security Act of 1947, http://www.intelligence.gov/... provides for there to be full briefings to members of the House and Senate Intelligence Committees with respect to all Executive Branch intelligence activities, with the exception of covert activities.
SEC. 502. [50 U.S.C. 413a] To the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters, the Director of Central Intelligence and the heads of all departments, agencies, and other entities of the United States Government involved in intelligence activities shall -
(1) keep the congressional intelligence committees fully and currently informed of all intelligence activities, other than a covert action . . .including any significant anticipated intelligence activity and any significant intelligence failure; ...
With respect to covert activities, there are not only special rules on briefing Congress, but also special requirements vis a vis the President being able to undertake those activities.
SEC. 503. [50 U.S.C. 413b] (a) The President may not authorize the conduct of a covert action by departments, agencies, or entities of the United States Government unless ...
The President is required to identify foreign policy objectives and the importance to national security in a written finding, either before the activity is undertaken or shortly thereafter and the findings cannot be done retroactively for a covert activity that was no pre-approved by the President. Any participation by "third parties" in the covert action or its funding shall be disclosed and no covert activities shall be undertaken that violate the Constitution or any statute of the United States.
Then, and only then, does the President have the ability to modify his disclosures from the full House and Senate Intelligence Committees to something less. After first spelling out that, even with covert activities the general rule is to inform the full committees:
SEC. 503. [50 U.S.C. 413b] (a) ...
(b) ...
(1) shall keep the congressional intelligence committees fully and currently informed of all covert actions which are the responsibility of, are engaged in by, or are carried out for or on behalf of, any department, agency, or entity of the United States Government, including significant failures;...
the Act goes on to provide that the President has an affirmative obligation to share the findings on which he bases his covert actions with the full committees as well:
(c)(1) The President shall ensure that any finding approved pursuant to subsection (a) shall be reported to the congressional intelligence committees as soon as possible after such approval and before the initiation of the covert action authorized by the finding, except as otherwise provided in paragraph (2) and paragraph (3).
This is where we find the "gang of 8" exception, whereby the President may limit distribution of his findings and information on the covert activities to only ( but not less than) that gang:
(2) if the President determines that it is essential to limit access to the finding to meet extraordinary circumstances affecting vital interests of the United States, the finding may be reported to the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other member or members of the congressional leadership as may be included by the President.
Keep in mind that the capture of Abu Zubaydah was by no means classified. Indeed, Bush’s mouthiness about that capture has been repeatedly linked as the "pride protecting" reason for the torture. Ron Suskind’s The One Percent Doctrine describes Bush giving:
...a speech at the Greenwich, Connecticut, Hyatt Regency on April 9, 2002. "The other day we hauled in a guy named Abu Zubaydah. He’s one of the top operatives plotting and planning death and destruction on the United States. He’s not plotting and planning anymore. He’s where he belongs," the President said...
p. 99.
As others have discussed, the President grossly "oversold" this to the American public, since Zubaydah had already been determined to be a) crazy and b) mostly a kind of travel agent, with no operational "plotting and planning" responsibilities or authority. Discussing CIA reaction to Bush’s speeches, Suskind writes:
"Around the room, a lot of people just rolled their eyes when we heard comments from the White House. I mean, Bush and Cheney knew what we knew about Zubaydah. The guy had psychological issues. He was, in a way, expendable. It was like calling someone who runs a company’s in-house travel department the COO,"said one top CIA official who attended the 5 p.m. meeting where the issue of Zubaydah came up. "The thinking was, why the hell did the President have to put us in a box like this?"
What they’d soon realize was that this was the President’s management style. A way, as he would often quip, to push people "to do things they didn’t think they were capable of."
p.101
Given that the capture of Zubaydah was not classified, with the President pitching it in speeches as evidence of his prowess, what was the topic of the briefings and what was discussed?
The WaPo story (whose sources obviously want a few members of Congress dangling on the torture hook with the CIA) makes the point that there were lots of briefings (and that, Gang of 8 or Gang of 4, Pelosi was in the know for the briefings in the spring and Sept of 2002 (after which Harman took over as the ranking Democrat on the Committee until 2006). WaPo and its sources also want to make sure readers know that there were LOTS of briefings:
The CIA provided another briefing the following month, and then about 28 additional briefings over five years, said three U.S. officials with firsthand knowledge of the meetings. During these sessions, the agency provided information about the techniques it was using as well as the information it collected.
We have 31 briefings over five years, yet no one (other than Jane Harman) mentioning the limitation to the "gang of 4?" Was only the Gang of 4 involved in all of those briefings? And while the story reports that the recollections of members of Congress about these briefings "varied dramatically" if the only "covert" aspects were the techniques (and not the capture itself), shouldn’t there be a written finding, spelling out what the President had authorized, in accordance with the Act, which could help de-dramatize those variations?
We do know that the full gang of 8 was involved in briefings on the warrantless and judicially declared (by Judge Diggs-Taylor) unconstitutional domestic surveillance program, despite a position paper by the Congressional Research Services which declared that the program did not qualify as a statutorily defined "covert action" (because it was at least in part a domestic program) and so required the briefing of the full committees. Again, only Harman seems to have questioned and pushed against this limitation.
As stories of illegal torture "mistakes" of Canadian and German citizens became common (at least, in the non-US press), WaPo explains that in September 2006, "the CIA for the first time briefed all members of the House and Senate intelligence committees" which resulted in either "heated exchanges" (per the WaPo authors of the piece) or "rich dialogue" (per current CIA Director Hayden, who seems, with his prior NSA activities coupled with his current CIA responsibilities, to be seeking to reach record holder status for attacks on the US Constitution). [Pause, for a moment, to consider the richness of the dialogue that might have been supplied by Russ Feingold]
In addition to the WaPo story, there has been a statement released by Speaker Pelosi that adds even more confusion to the issue of who received what briefings and when. Pelosi indicates that when she left the House Intel committee and was replaced by Rep. Harman, Pelosi was aware of and concurred in Rep. Harman's 2003 letter that purportedly (it hasn’t been declassified yet) objects to torture information. So how did Pelosi come by that classified information if briefings were limited to the Gang of 4 in 2003?
I fudged on looking up the gang of 8 members at the various applicable times, and instead I am going to rely upon a comment by Emptywheel in a thread at her new digs summarizing the gang during the roughly applicable time frames. With some slight changes to EW's wording, those are:
SSCI Dem Leader: Graham until 2003, then Rockefeller
SSCI GOP Leader: Pat Roberts until 2006, then Kit Bond
HPSCI Dem Leader: Pelosi until 2003, Harman through 2006, Reyes
HPSCI GOP Leader: Goss until 2004, Hoekstra
Senate Dem Leader: Daschle until 2004, then Reid
Senate GOP Leader: Trent Lott until 2002, Frist until 2006, then McConnell
House Dem Leader: Gephardt until 2003, then Pelosi
House GOP Leader: Hastert until 2006, then Boehner
So, who stands to lose the most about disclosures of torture to House or Senate leaders during 2002-2005 (when, supposedly, the CIA decided to eschew Chinese Water Torture for a bit)? Reid and Pelosi are the only leaders of either party, still in office, who would have been eligible to be in the Gang of 8 briefings during the applicable time periods and Pelosi, especially, would have known about the fact that briefings were being given to only the "gang of 4" even as she became minority leader and eligible for briefing. All members of Congress have absolute immunity for matters said on the floor, where Pelosi could have revealed that certain matters were not being briefed as required by the Act and made a demand for such briefings. Even for statements not on the floor, it would be impossible for the Executive branch to validly claim that a public, truthful, statement that the President was not complying with the briefing requirements of the Act would be a violation of any classified information laws.
As difficult as it seems to be to find anyone to focus on the question of, much less provide answers for, why (or whether) only the gang of 4 was briefed on the Zubaydah torture (or his craziness or operational non-importance), it seems daunting beyond belief to even speculate on whether we will ever know who, if anyone, was briefed on things such as reported the kidnap-for-abuse of Khalid Sheik Mohammed’s 6 and 8 year old children (it was the possible revelations of one GITMO detainee, Majid Khan, who reportedly was held at the same facility as those two children and received information about their treatment, that seemed to trigger the US Government’s argument that Khan should be barred from speaking with his own defense attorney’s about his interrogation and detention prior to GITMO); or the circumstances of the al-Libi rendition to Egyptian torture that generated the Cheney requested "intelligence" about al-Qaeda training camps in Iraq (that were determined to have never existed, but which were also reportedly admitted to and described by al-Libi under Egyptian torture which was targeted at providing Cheney with the statements he wanted made to help gin up the Iraq war.
The list could go on and on, but that would hit some the kinds of areas where members of Congress may have had briefings and received information upon which, in light of those circumstances and without regard to any "classification" by Bush, they had a duty to act. A duty to act and an absolute immunity, provided to them in their fiducariary status for the nation under the Constitution, for statements made by them on the floor of their respective Houses.
As over time revelations emerge, the failure of Democrats to address and fight against torture cover ups, the worldwide repeal habeas, statutory authorization to disappear and abuse, domestic surveillance cover ups, and accountability for a ginned up war begins to look less like incompetence and more like something quite different.