Congressional Democrats COULD HAVE Legally Revealed Bush's Torture Crimes

[Truth2Tell]

So Nancy Pelosi says she couldn't have revealed the classified information she was told about Bush administration torture even if she had wanted to. For that matter she says she still can't. And the meme echos across DU. Over and over posters insist that secrecy laws stood in the way of our noble office holders revealing what they were allegedly told about Bush Administration crimes. Alas, if only they could have spoken out...

Well, they could have. Here's the facts:

Pelosi and her defenders have been frequently citing 18 USC 798 regarding penalties for the disclosure of classified information. They are correct to do so. But there is more to secrecy law than just 18 USC 798, beginning with the the definition of "classified information."

"Classified information" http://www.lectlaw.com/def/c170.htm">is legally defined as "Any information or material, regardless of its physical form or characteristics, that is owned by the United States Government, and determined pursuant to Executive Order 12356, April 2, 1982 or prior orders to require protection against unauthorized disclosure, and is so designated."

So lets look at http://epic.org/open_gov/eo_12356.html">Executive Order 12356, the foundational legal document of our current system of security classification. Here's the relevant passage:

Sec. 1.6 Limitations on Classification.

(a) In no case shall information be classified in order to conceal
violations of law, inefficiency, or administrative error; to prevent
embarrassment to a person, organization, or agency; to restrain
competition; or to prevent or delay the release of information that does
not require protection in the interest of national security.

Bottom line: information that has been classified in order to conceal violations of law has been improperly and illegally classified. This is clearly the case regarding torture (not to mention FISA violations and a myriad of other official crimes).

Anyone - from Congress members to members of the press - who publicly reveals improperly classified information has available to them the defense that the information in question was not in fact "legally classified." Of course the revealer of the information is taking the chance that - if prosecuted - a judge will not agree with their personal assessment that the classified activities were criminal.

All of this is well established. The "embarrassment" language of Exec Order 12356 1.6 (a) was in fact used by the New York Times to successfully defend themselves against charges of violating secrecy laws with the publication of the Pentagon Papers. And of course none of this even touches on the criminal immunity Congress members enjoy for statements made on the floor of the House or Senate.

Sooo... all that would have been required of Pelosi, Rockefeller, Harmon or any other Congress member would have been to make the individual self-evident and perfectly reasonable determination that what they were briefed about violated the law. They could then have revealed that information and fought to oppose the criminal acts.

If the Bush administration were really foolish enough to have opened the can of worms involved in charging a member of Congress with violating 18 USC 798 they would eventually have found themselves in in secret court proceedings defending the legality of the underlying torture crimes. Such an action on their part would have been highly unlikely for both legal and political reasons.

Some in our Party would like to put their heads in the sand and insist that ALL culpability for torture and other crimes rests with the previous Republican administration. Such an unwillingness to take responsibility for the Democratic share of blame is not only the height of hypocrisy but also weakens our Party and helps ensure that future governmental lawbreakers will avoid accountability.

Yes. Lets point the primary finger of responsibility for Bush era abuses first and foremost at the criminal Republican administration that directly conceived and executed the crimes. By all means hold them accountable first and foremost. But lets not be afraid to clean our own house as needed. A Democratic leadership committed to accountability and aggressive oversight could have certainly put much more of a crimp in Bush lawbreaking if only a serious effort had been made.

Certain Democrats could have legally spoken out. They CHOSE not to. Lets move beyond the tortured rationalizations (pun intended) and admit what we all know: Our leaders lacked the moral and political courage to stand against the Bush administration and its crimes. They feared being labeled un-American or soft on terror. They feared the wrath of the media and their political enemies and they feared losing their own positions of power. They behaved like gutless sniveling cowards when we needed them the most. For the sake of our Party we shouldn't let that pass.

I understand this process of self examination can be politically difficult. The Republicans and the direct perpetrators of Bush crimes predictably use any discussion of Democratic complicity to divert attention from their own even greater share of blame. In fact they almost certainly briefed Democrats about their crimes to lay the groundwork for this exact strategy. Still, such is politics and these attempts at diversion can be easily deflected. They certainly don't excuse our own refusal to pursue all those complicit - even our own.

[G_j]

1. K&R

[aquart]

2. Not one was willing to sacrifice career for country.

THAT's what we know. That's what they can't admit.

[walldude]

12. Yup.. I have been taking crap for that same opinion...

I was told earlier today I was being "silly". And by a DU'er who's opinion I respect. People can spend all the time they want justifying the inaction, I'm not buying it.

[cherokeeprogressive]

3. K & R

[EFerrari]

4. Thank you for posting this.

K&R

[LakeSamish706]

5. Some very serious consequences will occur with not bringing the Bush Admin. to Justice...

as well.

Several questions need to be asked and answered;

If Law makers are not going to insist that the laws they write be upheld, what do we need law makers for?
If we don't have laws, we don't need courts, judges, lawyers etc.
With no laws we don't need police, jails etc.

So you can see where I am going with this.

[NightWatcher]

6. k and r.......not "could have", but SHOULD HAVE

but lets remember how fast impeachment was "off the table" for Pelosi and the new Democratic majority. Maybe the Age of Obama will encourage us to replace the luke warm with the red hot Dems in 2010 and 2012.

[Truth2Tell]

7. Quite so. Certainly morally OBLIGATED to have done so.

Maybe legally obligated as well.

[NightWatcher]

16. silence = complicity......that makes her JUST AS guilty in my book

when's the last time we rounded up a bunch of politicians bound for the slammer?
what's that?
past time!

[Better Believe It]

8. I can't defend Pelosi's cowardly behavior and lame excuses

All Pelosi and company had to say on torture was: "the Bush government is engaged in torturing people they claim might be terrorists"

We can't legally divulge the details of their torture program without the approval of the Bush administration. The details of their torture program are a big secret. WE have written a letter to President Bush asking for his permission to reveal the hard facts about his secret torture program."

Or something along those lines. You get the picture.

Do you think the Bush government would have dared prosecuted Pelosi and other members of Congress who had released such a statement?

And if Congresswomen Pelosi and company are unwilling to take risks in defense of our nation and Constitution they are at best cowards. They certainly are not reliable patriots.

[stillcool]

9. I've seen the comparison made..

with the Pentagon papers and don't get that. Those papers were stolen and given to a member of Congress who then read them into the Congressional Record before releasing them. I'm not sure that those few who are cleared to get classified briefings, and sign those secrecy oaths fit in that category. I'm also not sure why those briefings would contain any reference to illegalities. After all, the reason why there is no oversight to all the black ops is because Congress doesn't want to know.

[EFerrari]

13. The same eight people were briefed on the wiretapping, remember?

This is just a repeat of the distracting flap over that, same methods, same Democrats.

Nancy Pelosi has consistently avoided anything in the least bit controversial and as the leading Democrat in the House, she set the tone.

[Truth2Tell]

15. I don't see how the source of the material matters.

Or how signing a secrecy oath matters. If the material in question was illegally classified to begin with the Congress member revealing it has that fact available as a legal defense.

I also am not 100% certain that Congressional briefings contained any reference to illegal activities. However it's certainly looking more and more as if they did. For example, Rockefeller has acknowledged he was briefed on waterboarding. All that would have been required of him at that point would have been to make the personal self-evident determination that waterboarding violated the law. I would strongly argue that it's obvious that on its face that it does. At that point he could then have publicly revealed the waterboarding and publicly opposed it. In the very unlikely event that he were then prosecuted by the Bush administration he would have had the criminal nature of waterboarding and EO 12356 1.6(a) to use as a legal defense.

[stillcool]

24. I don't know what that whole..

secrecy oath and security clearance is all about..and what the penalty is, or why no one spills. The only time I remember anyone revealing classified information was when Philip Agee did it, and he left the country before the book was even published. Funny how that led to Bush I's law, making it a crime to out CIA agents.

[Bette Noir]

43. While I agree that *somebody* should have spoken out,

I suspect that whistle blower would have been 'disappeared' before he/she could have had much impact. We're dealing with the Bush/Cheney administration, and the Gonzalez Justice Department, after all.

[bertman]

44. Bette Noir, consider if the Democratic leaders who were given the information had stood

together and said "We will not allow this to go forward." One press conference would have stopped this lawlessness in its tracks.

Do you think BushCo would have assassinated Pelosi, Rockefeller, Harman, and Graham to keep this out of the public's eye? No way.

These four Democrats sold us down the river because they are more concerned with the control of our government by their corporate masters than with the Constitution of the United States and upholding our laws.

[Kaleko]

10. Democrats have functioned as ENABLERS

to the most abusive bunch of murderous intimidators ever to seize power in US history.

Democrats will have to face the consequences of the dysfunctional relationship they have helped to perpetuate.

Expect books to be written about this relationship for generations to come.

[bvar22]

11. Many powerful Democrats KNEW, but kept silent.

A whole bunch of Democrats sat on the Senate Armed Services Committee Investigation of the abuses at Abu Ghraib in 2004.
They were shown classified photos and videos of murder, rape, and other torture.
They KNEW for a FACT that Torture, Murder, Rape, and other War Crimes were systemic,....and yet kept their mouths shut, and (for the most part) remained supportive of the WAR.

These are the Democrats who sat on the Senate Armed Services Committee Investigation, and are complicit by turning a blind eye:

Sen. Hillary Rodham Clinton (D-N.Y.)

Sen. Evan Bayh (D-Ind.)

Sen. Joseph I. Lieberman (D-Conn.)

Sen. Carl Levin (D-Mich.)

Sen. Edward M. Kennedy (D-Mass.)

Sen. Robert C. Byrd (D-W.Va.)

Sen. Jack Reed (D-R.I.)

Sen. Daniel K. Akaka (D-Hawaii)

Sen. Bill Nelson (D-Fla.)

Sen. Ben Nelson (D-Neb.)

Sen. Mark Dayton (D-Minn.)(retired)

Sen. Mark Pryor (D-Ark.)

[G_j]

31. and Impeachment was not a popular subject

more like a taboo

[bottomtheweaver]

55. Kennedy never supported the Iraq war and voted against the IWR:

'Kennedy on IWR: “the best vote I’ve cast in my 44 years in the United States Senate.”'

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=364&topic_id=3078888&mesg_id=3078888

And as I recall Kennedy was the first Senator to publicly call for troop withdrawal and had basically caught hell for it.

I know, it's old news, but why paint with such a broad brush when clear thinking is what we need right now?

[bottomtheweaver]

58. September 2006: Kennedy Tried to Outlaw Waterboarding: The Amendment lost, 46-53

In connection with passage of the 2006 Military Commissions Act, in September 2006, Sen. Ted Kennedy proposed an amendment that would have expressly defined “waterboarding” (among other indignities) as a grave breach of Common Article 3 of the Geneva Conventions. The Amendment lost, 46-53.

http://johnltdo5455.wordpress.com/2009/04/27/kennedy-tried-to-outlaw-waterboarding-the-amendment-lost-46-53/

[bottomtheweaver]

57. YouTube: "Kennedy Asks John Ashcroft about Torture Memos-2005"

http://www.youtube.com/watch?v=INJ2IaBsqC0

The point is that some members of Congress did speak up about this program.

[walldude]

14. But.. but.. haven't you heard the Vase story?

I saw this a few times today:


Mom: Jimmy, did you break my prize vase?
Jimmy: well, yeah, but Tommy saw me do it and didn't tell on me!
Mom: Tommy, its time to punish you for not telling on your brother.
Tommy: but what about Jimmy? He broke the vase?
Mom: that was in the past, its time to move on.

Apparently people think that now we just want Pelosi punished and everyone else can go free. Bullshit. I want anyone involved in prison and anyone who knew out of a job.

[Truth2Tell]

19. Yep, Jimmy and Tommy can both go to bed

with no supper.

[SOS]

21. Some problems with that one...

A child breaking a vase is not a crime. The analogy is pointless.

Here's the criminal version:

Mom: Jimmy, did you rape and torture the girl who lives next door?
Jimmy: well, yeah, but Tommy saw me do it and didn't tell on me!
Mom: Tommy, its time to punish you for not telling on your brother.
Tommy: but what about Jimmy? He committed violent crimes.
Mom: that was in the past, its time to move on.

Jimmy gets charged with class A felonies.
Tommy gets charged as an accessory.

"To be convicted of an accessory charge, the accused must generally be proved to have had actual knowledge that a crime was going to be, or had been, committed. Furthermore, there must be proof that the accessory knew that his or her action, or inaction, was helping the criminals commit the crime, or evade detection, or escape."

[Solly Mack]

17. K&R

[Better Believe It]

18. K & R

[mzmolly]

20. "In no case shall information be classified in order to conceal violations of law..."

Thus the problem with Bush attorneys saying what happened was legal.

[JDPriestly]

22. Truth2Tell -- Pelosi is stating that she was told that the techniques

used were legal. That is the significance of her stating that she was told they were legal. That is what, she will claim, bound her to silence. We need a special prosecutor to investigate and determine who said what when -- if we can.

If the investigation does not clarify this, then the Bush administration should be prosecuted for failing to keep records of what was going on in their administration. (I'm not sure how you would do that in reality, I just think it ought to be possible to prosecute administrations that don't keep records -- like torture tapes -- that are essential to the historical record.)

We can argue about who knew what when, who should have done what when and accuse and accuse. But the only facts that are clear are
1) The Bush administration authorized or ordered that prisoners who were not armed or at the time of their imprisonment "dangerous" be tortured. (We do not know for sure why they were tortured.)
2) Certain members of Congress attended meetings at which it is claimed that they were informed about the torture.
3) Thus far, we have not been shown a contemporaneous word-by-word record of what members of Congress were told.
4) Various lawyers at various levels and in various offices of the Bush administration wrote memos purporting to establish that the torture was legal.
5) Those memos have been discredited by respected attorneys and experts on relevant issues.

We know little beyond that. The rest is speculation. Nothing wrong with speculation, conjecture and baseless conclusions. Love them myself and indulge in them a lot, but that is all they are.

[Truth2Tell]

23. I don't presume to know exactly who knew what and when.

But it appears at this point that several Democrats had enough information to form their OWN judgments about whether what was happening was legal. The fact that Bush lawyers CLAIMED it was legal is largely irrelevant. If Congress members were told waterboarding was being used, but not to worry it's legal - that doesn't cut it. They should have the common sense mental faculties to determine for themselves that the law was being broken and to act on that determination. That's what we pay them for. If they didn't have - or don't have - that ability then they have no business in Congress.

[Supersedeas]

28. The fact that Bush lawyers CLAIMED it was legal has a direct and binding effect on Sec. 1.6

To claim that the Bush Legal opinions were largely 'irrelevant' is tantamount to saying the National Security policy is only secret when the person receiving the briefing 'feels' like it is secret.

The responsible action should have been for Congressional leaders to request immediate access to the legal memos. There was a REASON for the memos themselves were classified and a REASON why Congressional leaders were not provided access to the legal opinions until years after the use of the torture techniques. You put your finger on it. The reason the memos were classified was to keep the Congressional intelligence briefings hush-hush pursuant to the statutes you cite above.

Regarding mental faculties, I take a different position: To claim that Pelosi or any other Congressional figure had an obligation to immediately go hysterical and blabb to the media and the public the details of these highly classified briefings defies common sense. Congressional leaders are put in a position of responsibility (and paid for it) because they are supposed to be trusted with national secrets as part of their oversight authority. If Congress-critters immediately rushed to the public or the media everytime they personally felt some personal objection to the contents of briefings, one of two things would happen -- the Congress person would soon find themselves in a position where he/she would no longer be allowed access to such briefing AND/OR the briefer would give less or little information about 'sensitive subjects.'

Personally, I want Congressional leaders to know more, not less, even if they are obligated to keep and maintain confidences until such time as they can disclose the information by legitimate and legal means at some later date.

I am no happier than you are about Pelosi's public statements about this (especially if her staffers were briefed about the USE of the techniques--then she is now misrepresenting her awareness of the use of torture for political cover). The whole cover-up can be worse than the crime thang.

To me, the focus on Pelosi is a non-sequitor--and a blatant diversion. I see no reason why we should not FOCUS like a LASER-BEAM on the classified legal opinions that both gave the green light to torture and provided a means of stifling further discussion in the halls of Congress. The lawyers who authored those legal opinions would submit that the use of common sense mental faculties is the problem--that THEY have some special mental faculty which neither we nor your common Congress-critter share--well, they ought to be obligated to explain for the rest of us COMMONERS how we reached a point where Amerians can legally torture and Congress ought to be required to keep quiet about it.

Isn't that exactly what the Bush Lawyers would do? They would look Hoestra in the eye and say that the techniques were legal and because they were legal Pelosi was REQUIRED as a MATTER of law to honor national security policy and keep quiet about it. Hoestra and the other Reskanks would be put in a position where they would either have to RESPECT Pelosi's position OR attack the legality of the torture memos.

But instead of the focus being on the legality of the Memos, the knee-jerk reaction of the RW and their Media accomplices is to demonize Pelosi and Democrats (in a blatant attempt to keep their CONSTITUENTS quiet) when neither Pelosi nor any Democrat had ANYTHING - NADA - to do with the FORMULATION of the torture policies. It does challenge common sense mental faculties how we are lead to the conclusion that Pelosi and Congressional Democrats are to blame...but here we are.

[Truth2Tell]

33. Thanks for the thoughtful response.

You incorrectly characterize a number of things about my position.

I don't suggest that National Security policy only be secret when the person receiving the briefing 'feels' like it should. However, recipients of National Security briefings, particularly those charged with ultimate oversight like members of Congress, have an obligation to use their own judgment and experience in determining if something they are hearing violates the law, and to then take action.

I don't suggest that Congress-critters immediately rush to the public or the media every time they feel some objection to the contents of briefings. I only suggest they do something if they can see, using common sense, some prima facia evidence of criminal activity. That's a far cry from just "feeling some objection." At that point they have a whole range of options available, including the media and their own powers of investigation and enforcement.

They didn't need the legal torture memos. If they were told in briefings about specific torture techniques, like waterboarding, that violate international law, they had everything they needed to act.

[JDPriestly]

47. Now that Obama is president, you can argue that they should

have said something. That's because we have a Democratic attorney general. Bush's attorney geenral would have prosecuted Pelosi right away had she said something. And Pelosi would have been in big trouble. It might have eventually turned out OK, but she acted reasonably in not saying anything.

[EFerrari]

25. Common sense tells us that Nancy Pelosi knew to distrust Bush/Cheney.

For her to claim that she trusted them on the legality of their measures is not credible.

[JDPriestly]

46. That would not change the applicability of the law.

If she was told that the torture was legal, then she could not reveal that she had been told about it. That's the way I understand it. It's not a matter of whether she should have been suspicious. No doubt, she was. It's whether, under the law, she could have said anything about the torture.

[jeff47]

53. They're the only ones offering an opinion.

Pelosi could not consult her staff or an attorney for another opinion. As she's not a lawyer herself, it's not terribly reasonable to expect her to understand the law better than Bush's goons.

Not to mention it's Bush's lawyers that would be prosecuting her for the disclosure. So their opinion is highly relevant.

[ProSense]

26. This is simply ridiculous.

So Nancy Pelosi says she couldn't have revealed the classified information ...

Your entire piece is based on what you believe Pelosi knew, which is shrouded in Repub spin

Still, I don't get the implication here.

Certain Democrats could have legally spoken out. They CHOSE not to. Lets move beyond the tortured rationalizations (pun intended) and admit what we all know: Our leaders lacked the moral and political courage to stand against the Bush administration and its crimes. They feared being labeled un-American or soft on terror. They feared the wrath of the media and their political enemies and they feared losing their own positions of power. They behaved like gutless sniveling cowards when we needed them the most. For the sake of our Party we shouldn't let that pass.

I understand this process of self examination can be politically difficult. The Republicans and the direct perpetrators of Bush crimes predictably use any discussion of Democratic complicity to divert attention from their own even greater share of blame. In fact they almost certainly briefed Democrats about their crimes to lay the groundwork for this exact strategy. Still, such is politics and these attempts at diversion can be easily deflected. They certainly don't excuse our own refusal to pursue all those complicit - even our own.

Good grief. What the hell is this suppose to mean? This OP is the biggest diversion of all.

It reminds me of the of one of the Repubs latest arguments:

Public Awareness Of Government Misconduct Is Being Used To Justify Placing Government Officials Above The Law

A briefing (despite whose version anyone believes) is not the same as writing the memos, approving the policy and carrying out the torture. Not even friggin close. This fixation on loud proclamations of how wimpy Dems are is ludicrous.

Still, anyone who wants to launch a thorough investigation into Bush's torture policy based on Pelosi's denial instead of Cheney's admission needs to get on with it.

Anyone found complicit will have to suffer the consequences, but the architects and those who approved it need to be prosecuted for war crimes.

[Truth2Tell]

27. ProSense, I never suggested

that receiving a briefing is the same as directly committing the crimes. Nor did I suggest that the two actions deserve equal punishment. But nice straw man.

I have also said I don't know exactly what Pelosi knew or when she knew it. I am responding to those Pelosi/Rockefeller defenders who have been suggesting that it doesn't matter what they were told because it was all classified information and they couldn't do anything about it regardless.

If it turns out that no Congressional Democrats were told anything about any activities that could be determined by a person of common sense to be illegal, then of course they are not complicit. Unfortunately the evidence is beginning to suggest that they did know enough. In fact it has been circumstantially clear for quite some time, long before these most likely exaggerated CIA disclosures.

[ProSense]

29. Straw man? If you never suggested...or aren't sure

why the OP?

...Nor did I suggest that the two actions deserve equal punishment. But nice straw man.

I am responding to those Pelosi/Rockefeller defenders who have been suggesting that it doesn't matter what they were told because it was all classified information and they couldn't do anything about it regardless.

If it turns out that no Congressional Democrats were told anything about any activities that could be determined by a person of common sense to be illegal, then of course they are not complicit. Unfortunately the evidence is beginning to suggest that they did know enough...

Talk about a straw man. My point was that you don't know, and yet you respond by making the issue the briefing. You talk about diversion, when you are engaging in the very thing.

[Usrename]

32. She has failed to recuse herself from responding to this whole problem.

As Speaker, she has certain moral and legal obligations in a situation like the one she finds herself in. She should either recuse herself from this torture issue or else she should take some affimative steps to comply with the law.

At the VERY LEAST, Judge Bybee should be impeached and removed from the bench.

Only the Speaker can initiate that action, since she controls the agenda for the House.

Her lack of action might be turn out to be prosecutable under international law, if she continues to obstruct, since the Convention Against Torture requires her (as a competent authority) to take specific action whenever there is a reasonable belief that somebody has been tortured.

She, and only she, can call for a vote to initiate impeachment proceedings against Bybee. The way I see it, it is not only her sworn duty to do so, but also her legal obligation. Either lead or get out of the way.

[Supersedeas]

30. Cough - clear for quite some time?? When did Congress receive the Bush legal memos?

[Truth2Tell]

34. They didn't need the legal memos

all they needed to do was form their own legal opinion based on the information they were given about the torture methods (if any). And it's been clear for quite some time because most of the methods have been made public with no action by Congressional Democrats.

[Supersedeas]

37. forming a subjective opinion about the legality of a highly classified brief does not meet

the Section 1.6 standard which you site above.

Note too: that Section 1.6 is not a defense -- it is a guideline with respect to the scope of classification. An individual Congress person does not have the right to disclassify something which they 'feel' or 'believe' falls outside of the Section 1.6 classification prescriptions.

They can ask for a declassification. But the point here, is that YOU feel that Democratic members of Congress are 'accomplices' because they didn't do 'something'.

I agree that they should have done something (namely challenge the legal justification behind the techniques--which would apply EVEN IF the Congress person did NOT know that they were used) -- my only disagreement with you is that respecting national security classification and secrecy laws do form a prima facie guide for how a Congress person should proceed before disclosing classified information. I attempted to substantiate MY position for erring on the side of maintaining the confidences of intelligence agencies. In the continuing interest of Congressional oversight, there are strong and valid reasons for respecting the legal positions taken by the Executive branch. A person in the leadership position in Congress should know that overcoming the national security and classification laws will take more than a subjective position IF they want to receive thorough and honest intelligence briefings in the future.

Put simply: it takes more than a subjective hunch to overcome an Executive Branch finding of legality by an individual Congress person.

[JDPriestly]

48. Thank you, Supersedeas. I agree with your analysis.

I agreed with the OP until I read the statute. Now I agree with you. Pelosi did what the law required. Congress, with McCain and the Democrats in the lead, passed a statute that would have reiterated that the U.S. does not torture. Bush signed it while reserving the right to himself to "waive the restrictions" in the bill he signed.

The only way to make it clear to future presidents that torture is illegal is to prosecute George W. Bush. Sorry, but he set up this show-down.

By Charlie Savage, Globe Staff | January 4, 2006

WASHINGTON -- When President Bush last week signed the bill outlawing the torture of detainees, he quietly reserved the right to bypass the law under his powers as commander in chief.

After approving the bill last Friday, Bush issued a ''signing statement" -- an official document in which a president lays out his interpretation of a new law -- declaring that he will view the interrogation limits in the context of his broader powers to protect national security. This means Bush believes he can waive the restrictions, the White House and legal specialists said.

''The executive branch shall construe in a manner consistent with the constitutional authority of the President . . . as Commander in Chief," Bush wrote, adding that this approach ''will assist in achieving the shared objective of the Congress and the President . . . of protecting the American people from further terrorist attacks."

http://www.boston.com/news/nation/articles/2006/01/04/bush_could_bypass_new_torture_ban/

[Truth2Tell]

60. I don't suggest that a Congress member

should take such a determination lightly. And yes, it could only ever be a subjective opinion about the lawfulness of executive activities. And yes, it would involve the risk of criminal sanction if the courts found their objective determination to be wrong. The type of action I'm suggesting is the type reserved for situations when the path of the nation and the fate of the Constitution is at stake. I think we were (and maybe still are) in such a situation. If a Congress member revealed info from a classified briefing, the entire process, including the backlash, would be hugely political and the outcome would hinge in part on political and public relations outcomes. Doing what I suggest would have been tantamount to launching a wide open battle over executive vs Congressional power. I still believe it would've been the right course though.

[MannyGoldstein]

35. Pelosi Clearly Knew

She admits to being briefed, in detail, on CIA torture techniques. However, she claims that they didn't tell her those techniques were actually being used, so she didn't know. So why the %^&# did she think she was being briefed? A history lesson?

Not plausible.

[L. Coyote]

36. BUSH LIED. If anyone thinks Bush told Pelosi the truth while lying to everyone else

I have a bridge to nowhere for sale :rofl:

[bread_and_roses]

38. Ordinary workers stood fast in the face of "legal" guns, thugs, jail

Peace activists have been arrested routinely and "legally" forever. Feminists "illegally" chained themselves to fences and endured "legal" force-feeding. Environmental activists have stood in the face of bulldozeers. Rachel Corey stood in front of a tank. But some here want to give Congress-critters a pass for remaining silent because to speak might have been "illegal?"

As for all this parsing about who knew exactly what when, please. We've been talking about the criminal Junta's torturing and rendition and etc. etc. etc. for years while our "representatives" sat silent in Congress.

[dothemath]

39. What am I missing ????????

If the EO was issued in 1982 and the NYT published the Pentagon Papers in 1971, how could the NYT use EO 12356_1.6 (embarassment language) as a defense?

[Truth2Tell]

61. Good point.

I picked that up from another DU thread. I'm off to get to the bottom of it and will report back.

On edit: My bad, that EO was obviously not used. However, the legal precedent that the Supreme Court established on prior restraint of speech was based on the fact that The Times was able to demonstrate that the classification was made to avoid embarrassment rather than protect national security.

http://www.nytimes.com/1992/12/23/us/william-e-hegarty-66-a-lawyer-for-times-on-the-pentagon-papers.html

It was that ruling that then later provided the basis for the EO. Color me wrong.

[pmorlan1]

40. Accountability for All

I absolutely agree that any investigation must also look at the Democrats conduct. Any Democrat who says it shouldn't is no better than those Republicans who refuse to advocate an investigation into the Bush era crimes.

We must also stop assuming that ALL Republicans are against an investigation. There are Republicans (even conservative Republicans) who are also advocating accountability. You don't hear about these Republicans because the establishment media wants to paint this as a liberal vs. everyone else issue so that they can bury it.

http://democracity.blogspot.com/2009/04/best-kept-secret-in-washington.html

[The Wizard]

41. All those wiretaps

gave Rove the information he needed to blackmail anyone in his way. Torture Karl Rove.

[Bette Noir]

42. You expect elected officials to act with honor and courage?

You have more faith than I do.

[bertman]

45. Thank you, Truth2Tell. This is what many of us suspected all along. Our Democratic

leaders are just as much at fault as BushCo. They stood by and allowed this to happen.

Disgusting.

Recommend and kick.

[rateyes]

49. Thank you for spelling it out. I have said this to others, and they

wouldn't accept the fact that it is MANDATORY, by law, for anyone who knew of torture to reveal the information. To not do so is a crime in and of itself.

[leftstreet]

50. K&R

Thanks for all your work on this.

[VP505]

51. That may be true but......

It would take a pair of brass ones for someone to have stood up to Boo$h and Company, unfortunately most of the elected, regardless of party, just don't come so equipped. They see their jobs as their future, coast through enough years in office to get a fat pension, make enough of the right contacts so that upon retiring they are assured of a a fat pay check from some corporation for enough years to live well above average until it time to check out. They accomplish just enough without stepping on too many toes to remain necessary for we the people to keep their reelection assured.

[jeff47]

52. It's more complicated than that

Classified information is a bit more complicated than that. The fact that one piece of information can not be classified doesn't mean other information is not classified.

For example, "We're waterboarding Bob Smith". The fact that we're waterboarding Bob can't be classified. The fact that we're holding Bob is classified. So saying that sentence would still be illegal. And keep in mind the Congresscritters briefed on the program can not consult an attorney to figure out what is legal to disclose, and what is illegal to disclose.

Really what's needed going forward is a change in the law that allows the intelligence committee members to actually do something if an administration is doing something wrong. Under current law, the administration only has to disclose what they are doing. If Congress objects, the executive branch can tell Congress to shove it. A better law would require disclosure, and give Congress a method to stop any activity they disapprove of.

[merh]

63. that's hogwash

No law can be passed by Congress or executive order entered by the administration that authorizes the violation of other laws and/or our constitution.

[bottomtheweaver]

54. Eisenhower didn't warn us about the MIC because he thought we'd find it amusing.

He was warning us because he was SCARED, and he was scared because the people we're dealing with are ruthless, murderous, savage, depraved, and completely dishonest. That's my analysis anyway. And events quickly proved that he had reason to be.

So back to Congress: sure, they should have told us more about the torture, but there's a lot of things they should have told us, including the fact that 911 was a covert operation from start to finish. Did the CIA brief Congress on that? No, the CIA tells them the same lies they tell us, because the CIA is what Ike was warning us about.

So who is going to out the CIA? Well, apart from a few Kennedys and other reckless truth tellers including John Kerry, very damn few. So what the hell can we expect? It's our government and we're the ones who are going to have to take it back. Exactly how to do that, I don't know.

:shrug:

[leftstreet]

56. And there's a reason he first called it the MI'Congressional'C

MICC

He was right.

[bottomtheweaver]

59. Exactly. Or alternatively, W

World's oldest profession. :hi:

[MasonJar]

62. Why are we still talking about Pelosi? Perhaps she could have exposed

Bush, but would the evidence have been there or disappeared? Could she have substantiated the evidence? The Congress has had no luck getting Bush people or paperwork to Capitol Hill, even under subpoena. She would have been placing herself in a danger zone for charges of treason. We currently have definitive evidence out in the open for all to see, and Barack Obama is still doing nothing. No more about Pelosi; she would have been on much shakier ground four or five years ago than Obama is today. Let's concentrate on getting the president to do something NOW. And let's get some tough legislation passed which protects whistleblowers and penalizes those who do not expose wrongdoing of this level.

[mvd]

64. Looking at the overall picture..

I'm not ready to get on Pelosi yet. Unless there's good evidence that they could have exposed everything alone, I don't want to play into the right wing's hands.

Again, I'm waiting for the full story, which might be hard to determine anyway.

[Piewhacket]

65. Wrong, Truth2tell, you speak nonsense, not truth.

Violation of 18 USC 798 is very serious, could be a 10 year sentence.
Would certainly include removal from office.
You want your representatives to follow the law, don't you?

Executive Order 12356 does not limit criminal liability
under 18 USC 798, it merely directs subordinates
to pretend to follow a policy which was not enforced,
and under Bush everyone knew it was to be completely disregarded.

The order might be the basis of reclassification BY A
SUCCESSOR administration, but no judge who is sane
is going to second guess a classification by the
administration. Someone has been feeding you laced kool-aid.
Misinformation. That's two.

And it wasn't the basis for the Pentagon papers decision, more
misinformation. So that's three.

In other words, this is so so ludicrously wrong it qualifies as
Faux News (complete, multilevel, disinformation and propaganda).
So where did you get this nonsense?
They fed it to you and you swallowed. Right?

Tool much?

[Truth2Tell]

66. no judge who is sane

is going to second guess a classification by the administration

Really? It's happened before.

Our Congressional leaders have become neutered chickenshits. If one had chosen to exhibit the courage to take the Bush admin to task on this it would have been as much a political as a legal fight. They simply didn't have the guts to do it.

Why are you OK being represented by people who refuse to exercise the power they are granted by the Constitution? Why are you OK being represented by people who are too cowardly to put up a fight against the usurpation of power by the executive? What does this say about you and your respect for our Constitutional system of government?

I don't get it.

[Piewhacket]

67. What does it say? It says our country is still in deep * and we have a lot of work to do.

Understand that I'm not here defending Pelosi.
And I don't mind a little excess zeal in attacking our opponents.
And spirited (but legitimate) criticism of our friends is also ok.

But what's happening here is I'm pissed beyond understanding
that a bunch of criminals are not being prosecuted while
innocent people are being sent to jail every day. I want
prosecutions of the CRIMINALS.

And if legislators were complicit ... actually complicit,
I'm thinking Lindsey Graham maybe here, then let the chips fall.

But I'm not at all sympathetic to diverting attention from those
who are culpable to focus, based on falsehoods and nonsense,
on those who were clearly not culpable. I oppose that.

Of course I can understand people being pissed that we didn't impeach
Bush and Cheney, but the harsh reality was an impeachment was
going to cost a lot and not be successful, or worse, be only half
successful. Pelosi would have destroyed herself and badly
damaged the party trying. She couldn't have done it, she shouldn't
have done it.

And you need to understand that simple basic reality, and if you do,
the entire premise of your complaint against Pelosi vanishes.
So if you want to holler at a dem, holler at OBAMA and HOLDER that we
want prosecutions!

(*PS. No judge is going to rule to reclassify documents based on
an executive order. Not gonna happen. And if that's your defense
to 18 USC 798, then you might as well pack your toothbrush for
prison.)