Friday, May 08, 2009

Ambinder stitches up some fig leaves for Pelosi et al

No one should jump to conclusions about the CIA briefings of select members of Congress. Still, Marc Ambinder's equivocal defense of Pelosi and other members who received briefings is rife with diversion and obfuscation:
Based on several years' worth of distance, it's easy to conclude that Congress failed to police the CIA. But Congressional oversight of these matters has never been forward-looking. Congress is ill-equipped to monitor CIA operations in real-time; it cannot look over the shoulder of every National Security Agency analyst who picks up someone on a wiretap. And -- in an environment where the threat of terrorism was real -- we might wonder whether the type of Congressional oversight we seem to want would be more harmful than productive. We want the CIA to think twice before doing something naughty, but we don't want Congress to preemptively prevent the CIA from bribing, say, a source with a prostitute. We really don't. That's why our casting about for blame ought to end with political leaders who make policy decisions -- which is, in fact, where the blame for this program does reside.
What has calling out "a wiretap" or preventing a prostitution bribe got to do with being briefed on torture techniques and doing nothing to stop the torture or even protest it? Members of Congress who receive classified briefings may indeed be poorly positioned to object to many questionable activities. But the are a Constitutional check -- the whole point is to create an opportunity briefings are designed to give them an opportunity cry halt to dangerous abuses of power and violations of law and the Constitution.

According to Ambinder, if Pelosi was briefed about waterboarding and other torture techniques and wanted to object, her only option was as follows:
What she could have done -- and this does happen, occasionally -- is to walk out of the briefing, telling those CIA officials who came that what she just heard did not constitute a formal briefing, and that she would record, for her own records, that the CIA did not brief her on the subject. The CIA briefers would then return to Langley and inform their supervisors that Pelosi walked out of the briefing, mid-stream. Since CIA felt it was required to brief her -- and since Pelosi declared herself not briefed -- the CIA would then be compelled to try to re-brief her -- and would probably send a high-ranking official who could better explain the program.
What about insisting on meeting with the President and telling him that the procedures he had authorized were illegal? What about threatening to disclose them? Disclosing the contents of a classified briefing might be against the law. But so is torture.

Ambinder also offers this sympathetic read-back into Pelosi's circumstances at the time of the briefing:
But back in 2002, when more Americans (probably) supported those techniques than they do now (and most Americans support at least some of the EITs), and when Pelosi herself did not have the means or the legal knowledge to perform her own analysis of the legality of the techniques, and when the climate of dissent was quashed -- her reaction is understandable... maybe not, from our current perspective, excusable, although there is a range of opinion on that question.
Not to underestimate the pressure, and the enormous reservoir of goodwill that still belonged to Bush in September '02. And we don't know what Pelosi was told at that time. But if she was informed about, say, waterboarding -- would not the knowledge and values she walked in with be enough to recognize the procedure as torture? If not in the briefing, then after the fact?

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