In his Wall Street Journal column, Karl Rove claimed that because Nancy Pelosi was allegedly “informed” of the Bush administration's use of enhanced interrogation techniques, her non-action made her “an accomplice to 'torture.' ” The claim is inconsistent with the definition of “accomplice,” as well as with the reality of Pelosi's ability to affect the Bush administration's actions in any way.
In his May 14 Wall Street Journal column, Karl Rove claimed that because House Speaker Nancy Pelosi (D-CA) was allegedly “informed” in 2002 of the Bush administration's plans to use enhanced interrogation techniques (EITs) on detainees, her non-action made her “an accomplice to 'torture.' ” Rove wrote: “On Sept. 4, 2002, less than a year after 9/11, the CIA briefed Rep. Porter Goss, then House Intelligence Committee chairman, and Mrs. Pelosi, then the committee's ranking Democrat, on EITs including waterboarding.” Rove later asserted: “If Mrs. Pelosi considers the enhanced interrogation techniques to be torture, didn't she have a responsibility to complain at the time, introduce legislation to end the practices, or attempt to deny funding for the CIA's use of them? If she knew what was going on and did nothing, does that make her an accessory to a crime of torture, as many Democrats are calling enhanced interrogation? ... Are [Senate Judiciary Committee chairman Patrick Leahy (D-VT) and House Judiciary Committee chairman John Conyers (D-MI)] and other similarly minded Democrats willing to have Mrs. Pelosi thrown into their stew of torture conspirators as an accomplice?”
Rove's claim is not consistent with either the definition of “accomplice” or with the reality of Pelosi's ability to influence the Bush administration's conduct of interrogations. Black's Law Dictionary defines an accomplice as "[o]ne who knowingly, voluntarily and with common intent unites with the principal offender in the commission of a crime." Black's states further: “One is liable as an accomplice to the crime of another if he gave assistance or encouragement or failed to perform a legal duty to prevent it with the intent thereby to promote or facilitate commission of the crime.”
But Pelosi could not have “failed to perform a legal duty to prevent” the conduct if she was in fact powerless to stop it. As Vicki Divoll, a former deputy counsel to the CIA Counterterrorist Center and general counsel of the Senate Intelligence Committee from 2001 to 2003, wrote in a May 12 New York Times op-ed: "[A]s a practical matter, there was very little, if anything, the Gang of Four [in 2002: former Sen. Bob Graham (D-FL), Sen. Richard Shelby (R-AL), former Rep. Porter Goss (R-FL), and Pelosi] could have done to affect the Bush administration's decision on the enhanced interrogation techniques program."
According to Divoll, the members of “the so-called 'Gang of Four' ” were each “briefed orally and it was understood that they were not to speak about the program with anyone, including their colleagues on the committees.' ” Divoll wrote that “if they had decided to march down to the House or Senate floor and denounce the Bush administration for engaging in torture,” the “speech and debate clause of the Constitution,” which “shields senators and representatives from civil and criminal liability in the performance of their legislative duties,” would have protected them, but that “that approach not only could have harmed C.I.A. operations, but also surely would have been political suicide.” She further wrote that "[t]o stop [the program], they needed the whole Congress," but that "[f]our members do not have the ability, on their own, to bring the great weight of the constitutional authority of Congress to bear." Indeed, as the minority party in the House until January 2007, House Democrats had no power to force the Congress as a whole to do anything.
Moreover, even if Congress had passed such a law (over President Bush's all-but-certain veto), the Bush administration had taken the position that such an act would be unconstitutional. An August 1, 2002, Justice Department legal memo stated that “the President's power to detain and interrogate enemy combatants arises out of his constitutional authority as Commander in Chief. ... Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” That memo was rescinded in June 2004. Despite the memo's withdrawal, when Congress passed the Detainee Treatment Act in December 2005, Bush attached a presidential “signing statement” in which he essentially reserved the right to override restrictions contained in the bill, as the Boston Globe reported on January 4, 2006. The December 30, 2005, declaration read:
The executive branch shall construe Title X in Division A of the Act [the Detainee Treatment Act], relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of ... protecting the American people from further terrorist attacks.
From Divoll's May 12 New York Times op-ed:
The framers of the Constitution gave aggregate, not individual, powers to the legislative branch. For the Gang of Four to have waved their arms and yelled at mid-level C.I.A. briefers, or written harsh letters to the president and vice president, would have been useless. Four members do not have the ability, on their own, to bring the great weight of the constitutional authority of Congress to bear.
There are C.I.A. “covert action” activities -- like the detention and interrogation program -- that because of their significance, and risks, require participation from both the White House and the Congressional intelligence committees in their initiation and oversight. The National Security Act defines covert action programs as those designed “to influence political, economic, or military conditions abroad, where it is intended that the role of the United States government will not be apparent or acknowledged publicly.”
Of course, the real reason that notifying four members of Congress was better than 40 to the Bush White House is crystal-clear -- to eliminate political pushback. Check the box that Congress was informed just in case, someday, the program becomes public and things get rough. But do so in a way that the legislative branch is not in a position to cause any trouble.
In Article I of the Constitution, the framers gave Congress two extraordinary powers over the executive branch -- the power of the purse and the power to make laws. It is unconstitutional for the executive branch to spend one dime on a program for which Congress has not appropriated funds. And if Congress passes a law forbidding the executive branch from engaging in an activity, it must stop, or people go to jail.
But four members cannot stop financing and ban activities on their own -- that takes the whole Congress. So what might the four have done? They could have demanded that the full committees receive the briefings and that more information be provided. If the White House objected, they could have told their colleagues anyway. The committees then could have put a classified budget provision in the intelligence authorization bill for fiscal year 2003 cutting off money for the program, or delineating how the C.I.A. must treat detainees.
The speech and debate clause of the Constitution shields senators and representatives from civil and criminal liability in the performance of their legislative duties. It would have protected those members if they had decided to march down to the House or Senate floor and denounce the Bush administration for engaging in torture, though that approach not only could have harmed C.I.A. operations, but also surely would have been political suicide.
From Rove's May 14 Wall Street Journal column:
Someone important appears not to be telling the truth about her knowledge of the CIA's use of enhanced interrogation techniques (EITs). That someone is Speaker of the House Nancy Pelosi. The political persecution of Bush administration officials she has been pushing may now ensnare her.
Here's what we know. On Sept. 4, 2002, less than a year after 9/11, the CIA briefed Rep. Porter Goss, then House Intelligence Committee chairman, and Mrs. Pelosi, then the committee's ranking Democrat, on EITs including waterboarding. They were the first members of Congress to be informed.
In December 2007, Mrs. Pelosi admitted that she attended the briefing, but she wouldn't comment for the record about precisely what she was told. At the time the Washington Post spoke with a “congressional source familiar with Pelosi's position on the matter” and summarized that person's comments this way: “The source said Pelosi recalls that techniques described by the CIA were still in the planning stage -- they had been designed and cleared with agency lawyers but not yet put in practice -- and acknowledged that Pelosi did not raise objections at the time.”
If Mrs. Pelosi considers the enhanced interrogation techniques to be torture, didn't she have a responsibility to complain at the time, introduce legislation to end the practices, or attempt to deny funding for the CIA's use of them? If she knew what was going on and did nothing, does that make her an accessory to a crime of torture, as many Democrats are calling enhanced interrogation?
Senate Judiciary Chairman Pat Leahy wants an independent investigation of Bush administration officials. House Judiciary Chairman John Conyers feels the Justice Department should investigate and prosecute anyone who violated laws against committing torture. Are these and other similarly minded Democrats willing to have Mrs. Pelosi thrown into their stew of torture conspirators as an accomplice?
It is clear that after the 9/11 attacks Mrs. Pelosi was briefed on enhanced interrogation techniques and the valuable information they produced. She not only agreed with what was being done, she apparently pressed the CIA to do more.
But when political winds shifted, Mrs. Pelosi seems to have decided to use enhanced interrogation as an issue to attack Republicans. It is disgraceful that Democrats who discovered their outrage years after the fact are now braying for disbarment of the government lawyers who justified EITs and the prosecution of Bush administration officials who authorized them. Mrs. Pelosi is hip-deep in dangerous waters, and they are rapidly rising.