Isn't Pelosi Guilty Even on Her Own Account?

I used to be a prosecutor (though I didn't play one on TV), so maybe it's old habit, but I thought it might be useful to look at the governing statute.

As I understand it from one of her multiple versions of events — which Madame Speaker seems to think are somehow exculpatory — she claims that the CIA told her it was planning to use waterboarding but hadn't yet done so. As Karl Rove puts it in his excellent Wall Street Journal column today:

In today's news accounts, Pelosi ups the ante big-time by alleging that, in 2002, she was "told explicitly that waterboarding was not being used," and, therefore, that the agency is lying when it claims to have told her it was. But — though I acknowledge she is confusing and at times incoherent — Pelosi does not appear to disclaim knowledge that waterboarding was at least in the CIA's gameplan. And, indeed, she now says she learned waterboarding was being used from other lawmakers who attended other briefings in the ensuing months.

Now, back to the torture statute. I won't rehash the now familiar provisions that explain what torture is. But I do want to focus our attention on a prong of the torture statute, Section 2340A(c), that hasn't gotten much notice to this point:

So I ask myself, "Self, what difference does it make whether Speaker Pelosi knew the CIA was waterboarding suspects or merely knew the CIA was planning to use waterboarding?" Answer: None.

Unless a victim is killed by torture such that the death penalty comes into play (which is not alleged here), American law regards conspiracy to commit torture as something exactly as serious, punished exactly as severely, as actual torture. As it happens, I don't think waterboarding as administered by the CIA was torture. But Pelosi says she does. If that's where you're coming from, how do you get off the hook by saying you only knew about a plan to torture but not actual torture?

To establish torture conspiracy, a prosecutor wouldn't even have to prove an overt act in furtherance of the conspiracy. You just need to show that two or more people agreed to commit the prohibited act. Here, though, by her own account (or at least one of her own accounts), Pelosi knew the CIA was planning to use waterboarding and later learned it was actually being done. So, if Pelosi was told — as the CIA says she was — that waterboarding was being used, that's another nail in the coffin. But for a prosecutor, it's just gravy — not at all necessary to the case. As Pelosi herself tells it, she was aware of a conspiracy to torture — which is just as significant under the law as torture itself — and she did nothing about it.

Finally, on the "did nothing about it" score, the lamest part of Pelosi's defense is the claim that she didn't need to register her dissent because she agreed with Rep. Jane Harman's letter, purportedly "objecting to" the enhanced interrogation tactics. Here's Harman's letter. It contains no objection whatsoever to the tactics.

Harman wanted clarification that President Bush approved and authorized the tactics — which is understandable: if congressional leaders were being asked to stick their necks out here, they obviously wanted to make sure President Bush's neck was exposed too, and just in terms of good government it made sense to ask for assurance that the commander-in-chief was running the show. The only objection laid out in the Harman letter was to the notion of the CIA destroying a tape, not to the tactics recorded on the tape. The most sensible interpretation of that is that Harman (a) was understandably concerned about obstruction of justice claims down the road, and (b) thought any recording would be a good defense for the CIA and those briefed on the program if there were a later allegation that the CIA tortured the detainees. But, again, the letter evinces no protest about waterboarding or other harsh interrogation tactics.

In any event, it seems to me that the Speaker is cooked even on her own version(s) of what happened here.

http://www.nysun.com/national/blame-game-unfolds-in-house/67821/

Blame Game Unfolds In House
By ELI LAKE, Staff Reporter of the Sun | December 11, 2007

EXCERPT

Both lawmakers were briefed about the CIA’s practice of waterboarding, a technique deemed as torture by the American military and the Geneva Conventions, but only Mrs. Harman after her classified briefing sent a letter to the CIA regarding the practice, according to the Washington Post. Specifically, Mrs. Harman, who has asked the CIA to declassify the letter, says she wrote a warning against destroying videotapes.

On Monday, Mrs. Harman took to CNN to trumpet the letter she wrote in 2003. “As a rookie ranking member two weeks in, I was briefed on interrogation matters,” she said. “I was concerned enough about some of the things raised in the briefing that I wrote a highly classified letter, which I have asked be declassified, but it hasn’t been declassified. But Director Hayden basically raised the subject last week, so I can say that in my letter, I say that any planned effort to destroy videotapes would be ill-advised.”

On Sunday, Mrs. Pelosi issued a statement distinguishing between her briefings and those of Mrs. Harman, who she said “was briefed more extensively and advised the techniques had in fact been employed.” She also said she “concurred” with Mrs. Harman’s letter from 2003 that Mrs. Pelosi said protested the new interrogation practices.

Mrs. Harman yesterday met those careful words with an icy politeness. When asked on CNN whether Mrs. Pelosi “dropped the ball” when she was on the intelligence committee in 2002, Mrs. Harman said: “I don’t think so. And she’s speaking for herself. I wasn’t in the meeting she attended. But she says that she has complained about this.”

(snip)

A California Democratic strategist who knows both women yesterday said Mrs. Pelosi’s decision to deny Mrs. Harman the chairmanship of the intelligence committee was driven more by personality than politics. “Denying Jane Harman the chairmanship of that committee was a curious act, I am not sure it had as much to do with policy but personality,” Garry South said during a telephone interview.

http://transcripts.cnn.com/TRANSCRIPTS/0712/10/ltm.02.html

AMERICAN MORNING

Church Shooting in New Life Church; Al Gore Receiving A Nobel Peace Prize; CompUSA Shutting Down

Aired December 10, 2007 - 07:00 ET

EXCERPT

ROBERTS: Always good to see. Let me ask you about that meeting back in 2002, Porter Goss, who was then the chairman of the House Intelligence Committee told “The Washington Post” that lawmakers got a pretty clear understanding of waterboarding and he said, “the reaction in the room was not just approval, but encouragement.” Is that correct? Was there encouragement?

HARMAN: I wasn’t there in 2002. I was a member of the intelligence committee but I became ranking member in early 2003. So I wasn’t there at that briefing. I was briefed on interrogation matters in my first month on the job, and the briefing I received raised concerns in my mind and so I wrote a letter at that time to the CIA general counsel, who briefed mean and I expressed some concerns about what I heard, including the fact that if there were videotapes, they should not be destroyed. The letter’s classified. I’ve ask that it be declassified, so I can’t say in specific terms what I wrote, but I did hear over the weekend from a staffer that she thinks there was a response, very unsatisfactory, to my letter and I’d be eager to see if the CIA recognized then that what I said was important. They obviously ignored it in 2005.

ROBERTS: And the “New York Times” in 2005 on June the 12th quotes you as saying “if you’re serious about trying to get information in advance of an attack it has to be made to work. I’m OK with it not being pretty.” Did waterboarding rise to the level of torture to you or was that in the realm of “not pretty”?

HARMAN: Well, this is a very complex subject and it was all classified. I agree with John McCain, that waterboarding is torture. I think if anyone has authenticity in congress, he does and that’s his view and I’m very pleased that congress is finally moving basically to ban it, and require that the army field manual, which applies only to military interrogations, applies to everything. We made a big mistake by letting the CIA have separate interrogations procedure.

http://transcripts.cnn.com/TRANSCRIPTS/0712/10/sitroom.01.html

THE SITUATION ROOM

CNN Poll: Huckabee Soars to Top; Huckabee on Gays & AIDS;

Aired December 10, 2007 - 16:00 ET

EXCERPT

BLITZER: One final question.

Nancy Pelosi, the new speaker of the House, she put out a statement yesterday in the aftermath of “”The Washington Post” story. When she was the ranking member in 2002, once these videotapes were actually made, that she was told about — apparently in these closed- door briefings about the waterboarding, the other harsh interrogation techniques. “The Washington Post” did a whole piece yesterday saying nobody really complained. Maybe one member complained.

Did she drop the ball, Nancy Pelosi, when she was a ranking Democrat on the House Intelligence Committee?

HARMAN: I don’t think so. And she’s speaking for herself. I wasn’t in the meeting she attended. But she says that she has complained about this.

I want to make it very clear, I thought that the videotape — destroying videotapes was wrong, and I spoke out in 2003. I think that waterboarding constitutes torture. I buy John McCain’s view of that.

And I also think that the CIA should not have separate interrogation procedures. That’s why I voted against the Military Commissions Act two years ago which had a carve-out, let the CIA have a separate program. Congress should fix that and is about to fix that, I believe.

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