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Based on the excerpt supplied by The All-Seeing Eye Of Froomkin, I expected this Balkinization post to be an indictment of Jane Harman, but it's really about the intelligence oversight process itself. Marty Lederman starts out by reviewing Jane Harman's letter to the CIA in which she inquires about the CIA's plan to destroy the interrogation tapes, but does not go far enough:

[Harman] does not insist that [the CIA techniques] were illegal, and breaches of at least two treaties -- and does not insist that they be terminated immediately.

She does not ask how it's possible that waterboarding is not intended to result in severe physical suffering. She does not ask how the CIA can avoid the conclusion that "stress positions" and severe sleep and sensory deprivation are "cruel treatment."

She does not insist on seeing all the OLC opinions that reached the absurd conclusions that the techniques were legal.

She does not threaten to inform any of her colleagues in Congress about the shocking illegal conduct of which she has learned.

She does not begin a public debate about whether such conduct is lawful and, if not, whether the U.S. should amend the law and therefore breach its treaty obligations.

(...)

She is told that that there is videotape of the Abu Zubaydah interrogation "that will be destroyed after the Inspector General finishes his inquiry." Although she "urge[s] the Agency to "reconsider that plan," and warns that destruction "would reflect badly on the Agency," she does not question whether such destruction would be unlawful, nor ask why the videotaping was discontinued as to Zubaydah and other detainees, nor warn any of her colleagues about the destruction of evidence that she knows has been planned.

Jane Harman, in other words (and three other members of Congress), had it in her power to blow the lid on -- and end -- the U.S. torture regime in early 2003, or, at the very least, to initiate a congressional and public debate about the issue.

Pretty damning, right? Sure, Harman's no Profile In Courage, but she had her reasons, inadequate as they may be:

Of course, if Harman had done any of the things I suggest above, she would have paid a high price -- namely, that the CIA would have ceased briefing her about its activities.... Such is the nature of congressional oversight as it has come to be practiced: If members of Congress play by the rules that the intelligence community insists upon as a condition of providing member with any information at all, there's really not much the members can do, even when they are confronted by reports of continuing activitiy of dubious (at best) legality.

Giving agencies this much power over their overseers makes oversight a joke. What's the value of a committee whose members are aware of possible criminal activity, but can't do anything about it without sacrificing their committee positions and maybe even their freedom?

I understand the need for secrecy, but there has to be a way around this - some sort of impartial, behind-the-scenes recourse/resource that can rule on declassification requests and provide unbiased legal analysis on classified material (Harman was not allowed to consult a lawyer to assess the legality of the interrogation techniques). Anyone have any other ideas on how to re-balance security and accountability?