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?
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ZED
Eli!!
HA! I got one!
ELI…PEACE: http://icanhascheezburger.file...../peace.jpg
Laura!!
I suppose I could get zeds on my own posts all the time if I wanted to…
Heh heh heh. Awesome.
Eli, is that a close up of your eye? You have had the camera shot lately…
Nah, just a random pic I got off Flickr. It’s the sort of thing I would probably take, though. If I had a magnifying glass.
Not to worry. “The voice of change” (President Obama) will put this whole mess right.
I think government secrecy should be outlawed. It’s torturing mankind.
I am so zed-impaired lately.
While attempting to re-balance security and accountability, I propose that we add honor to the list. As in: is this an honorable thing to do?
Actually, I’m scratching what I had to say. Eureka Springs @ 10 says it shorter, better.
I understand that there are certain things you shouldn’t share with TEH EVILDOERS, but I don’t think torture techniques are among them, and I think the “the terrorists will be able to prepare themselves to resist if they know what’s coming!” explanations are bullshit.
Your sarcasm is inspiring!
Gawd, don’t ya just love Bi-partisanship at work…
http://tpmmuckraker.com/
Eli, you are correct this type of thing must be figured out before it ever happens again. Harmon really did,t have a “legal way of doing anything”.
Maybe we can get Nancy to fix that:) :(
Oh well wishful thinking!
Eli,
In my job I’ve had conversations with colleagues about reporting child abuse. In some states we are required to do so and at the same time are required to abide by confidentiality laws (should it be revealed to us in a so-called confessional manor.) It’s a very tricky situation. And yet, into our conversations comes the statement at one time or another that we have to do what is right for the child no matter what. Sometimes you have to be willing to break rules and accept consequences for doing the right thing. Harmon and Jello Jay and DiFi and others had a choice and they made it. Sorry for the country it was the wrong choice.
You’re right, Eli. Oversight is OVERsight, not undersight. Perhaps if there is a majority on the committee in disagreement with what is going on, there could be a broader oversight consisting of more-both-house and senate members? Why is it the house and senate never work together on important issues like this? Then they could go back and vote within the house and senate separately? Don’t know. I’m just sick of tradition and rules our congress adheres to. Time for some change. Did Obama say that?
Good evening Eli.
Oversight is a joke with this Congress anyway. They don’t seem to mind it disappearing in this arena and that.
Yes; Harman should have done the right thing despite the consequences. But it’s still a messed-up shitty situation that she even had to make that calculation.
Am I allowed to just keep posting my official PhysioProf policy on bipartisanship over and over?
Some of my close HRC supporting pals have asked when I will start getting on Obama’s case as I have done with Senator Clinton. I say to them, I’ve only just begun.
And it’s time the law-makers changed that messed-up shitty situation their own little selves. How absurd to legislate oversight but have no power to alter things when they’re wrong!
At the very least all members of congress should have full access to everything! We spend at least 60 billion a year on Secrecy.. Our top 535 elected officials should never be denied full understanding of what we are actually doing.
Well, the problem with leaving it up to the majority is, what if the majority are perfectly okay with what’s going on? There needs to be some kind of safety outlet and protection for whistleblowers, and there needs to be some mechanism to declare, “This material was classified to protect someone’s butt, not the American people.”
Mukasey of course tells he cannot confirm that waterboarding is torture. Are we prepared to say Harmon shares Mukasey’s non-view of waterboarding?
Is there supposed to be some good news this year?
The CIA should never be able to threaten any member of Congress, ever.
Thanks Eli for a great post.
Oooh, oooh, I know this one!
There’s a very good chance that we’ll elect someone at least marginally less despicable than Dubya as our next president!
Yes, but then you’ve got your Santorim types. The kiss-ass tattletales that want to sit on Cheney’s lap.
Try enforcing THAT one.
Because change is always for the better, isn’t it?
And especially not a member of Congress who’s supposed to be overseeing them.
Jeez, it’s like having your employees on the jury in your own court case.
If Rep. Harman had blown the whistle on the floor of Congress, she would be protected from prosecution by the Speech or Debate clause of the Constitution. The Congress could still censure her or even expel her, if they had the votes, and I’m sure that the administration would refuse to reveal any more classified information to her, but so what? After all, she’s off the committee anyway (because of a dispute she had with Nancy Pelosi).
You’re right. I’m assuming a majority of thinking congresspersons.
EPU from last thread some musings on the question of hidden inflation tax (147 on last thread).
We cannot truly be a free and open society in secret.
No one said I couldn’t, so here it is, the PhysioProf policy on bipartisanship:
I don’t want my party to “build bridges” to the psychopathic racist sexist authoritarian sick fucks that are the remaining dregs of the Republican Party. I want my party to adopt a clear unambiguous progressive platform that repudiates all of the pathology of the degenerate Republican Party.
To the extent that there are any Republicans who are sick of the depravity of their party, and not too addled to recognize that it is their party that has single-handedly created the national clusterfuck we are currently embroiled in, they are welcome to join us. Otherwise, they can all go fuck themselves.
“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.”
Under whose authority do they ( the intelligence community) get to set the rules? Isn’t this just a manifestation of the “secrecy equals power” M.O of the Bush WHite House? A remedy for such situations in the future might be to spread the sunshine of impeachment hearings today.
I reckon Harman likes being a congresswoman, and didn’t want to rock the boat. After all, it’s only a couple of terrorists - it’s not like we ever torture *innocent* people…
(Is she off the committee completely, or was she just passed over for chair?)
((( Eli )))
Evenin’ all !
Thanks for un-EPUing that. It is the kind of analysis I was looking for.
Iraq war and occupation would have never happened without secrets.
feel strongly about this?
digg it
Three thoughts.
1) It is contrary to law to improperly use classification to conceal criminal activity. The actions and threats of the Administration to prosecute and take retribution in this regard constitute effective extortion on top of their already illegal classification.
2) Last i checked, harman was a member of Congress. They have something called the “Well” there where members of Congress can actually make speeches and stuff. And debate things pertinent to the country, Constitution and government’s interaction with citizens. Oh, and by the way, anything said in the well is constitutionally protected from any prosecution. Maybe Harman forgot all this…..
3) There exists a super secret FISA Court. Manned by judges specifically assigned and security cleared for national security matters. Harman could have attempted to approach the FISC, but did not. Why?
My lady has read this post, as she does most of them. She advises me she does not like Harman. Lahoma is too much. I go ballistic and she simply says “well, after reading this, I don’t think I like so and so”.
((( bmaz )))
These points need to be drummed into every Americans’ mind or change will not come !
The halfway point between sanity and insanity is still pretty crazy. What scares me about President Obama is that we will one day hear him proudly announce that he has met with Republican leaders and reached a compromise: Instead of burning all liberals at the stake like the GOP demanded, he will only burn *half* the liberals at the stake.
(Hiya, Petro!)
And they cannot join us if they have voted with Bush/Cheney/Rove for the past seven years. Even Issa is pretending like he doesn’t agree with Bush, and that Bush is a dolt. Issa cannot join up.
Ooh, I wonder if I should hope that I am part of the half that burns or part of the half that might not burn.
Mind if I put this on a t-shirt? (I like small type.)
Hi Petro.
Thanks bmaz.
PhysioProf - that is truly inspiring and should be the banner under which we march!
Petrocelli!!! Where the hell have you been, guy? So happy to have you back “home”.
Didn’t the FISA court repudiate Darth’s classification system in a recent ruling…?
If we had no secrecy in government would our resources be used time and again to overthrow other countries and governments?
Thanks for the reminder. Dugg.
Anyone have any other ideas on how to re-balance security and accountability?
Congress-folk should be able, in situations where there is a question of balancing secrecy versus possible criminal activity, to directly petition the U.S. Supreme Court for guidance.
The matter could be heard non-publicly (or in camera) as many other matters are heard in closed hearings at lower levels. If for no one else, the members of the Gang of Eight need this avenue. To be told of a matter which would seem to be illegal, and then face criminal charges for speaking out about these matters in public or even disclosing to any other person (including staff or personal attorneys) is inherently counter-productive.
The requirement to report to the selected members of the Intelligence Committees, knowing that those same persons cannot repeat what they have heard, renders “oversight” moot, meaningless, and senseless.
If Jane Harman or Jello Jay could have taken matters which they knew, or even subjectively felt, to be wrong to a legal arbiter, without fear of a damaging leak or criminal retribution, torture might have been a short-lived phenomenon.
Can we conclude that Harman is an Independent Democrat? Is Harry Reid? Is Nancy Pelosi? Is Joe Lieberman?
((((( Loo Hoo )))))
Excellent point … when are you or demi gonna bring Issa down ?!!
With regard to Point 1, it pretty much describes the Bush administration’s M.O. in a nutshell, and yet they never seem to pay a price for it. With regard to Point 3, I was actually thinking of something like the FISA court as the behind-the-scenes mechanism, but I didn’t realize the FISC itself might be able to fit the bill.
As for Point 2, even if it *is* protected, she would still reap the whirlwind of hysterical Republicans and media outrage, and I don’t think Harman is the voluntary-whirlwind-reaping type.
Which is not to say that I disagree, just that most of our Democratic reps have feet of clay.
Except on certain issues if memory serves.
Heh, Darth had no such qualms with Valerie…
Do it! PhysioProf’s rants are totally open-source.
To me, the difference between sanity and insanity is the Constitution.
Exactly. Isn’t that also something like the way the “state secrets” defense is supposed to be handled?
Unless she took it to any of the fab four—Scalia, Thomas, Alito or Roberts. They would tell Cheney all about what she had to say and his thugs would be waiting for her outside the chambers doors.
There is no longer a safe or reasonable place to protect the people of this country from the evil doers.
Aw shucks … ya missed me … *g*
I have been hard at work completing my first book … now to find a Publisher who will throw vats of Gold at my feet … *g*
Or in your case, the Articles of Confederation, eh? ;-)
Certain very recent issue(s)? ;0)
Congrats Petro!
Hey Dood … don’t confuse the Yanks … *g* … thankfully, even our wingnuts still believe in democracy … for now.
Regarding those in the high oversight positions, I remember a recent thread where someone made a list of all those folks who had been members of the “Gang of Four” which gets the highest level briefings. (House Intel Chair, Senate Intel Chair, Speaker and Majority Leader, I think). IIRC, there were about 17 individuals who have held one of these positions during W’s time. Remarkably, I think I counted 10 of them as no longer in government.
I think that observation ties in very sadly to the point in the post about the overseers being powerless to do anything and may have a say in why so many have walked away from government. I have to agree with Eureka Springs @ 24 that maybe we should just make all of the information available to all 535 folks. I realize that would make it difficult to maintain full security, but come on, these are people we are electing to our government so we should (I know, kiddo, that’s probably too much to ask) expect them to show some responsibility. An alternative might be to keep something similar to the current oversight plans in place, but allow any concerned member of Congress or Senate to make an inquiry when they feel something may not be right.
Thanks Betsy, after 21 years of research, the first is completed and 7 more are lined up to follow.
How’ve you been ?
Abort all secrecy.
But what about the rights of the unborn secrecy?
Not too bad. Doing stretches daily, swimming 3x a week, even made it through most of the first 30 minutes of a yoga class. (Nothing on one foot though.)
Unless she took it to any of the fab four—Scalia, Thomas, Alito or Roberts. They would tell Cheney all about what she had to say and his thugs would be waiting for her outside the chambers doors.
yeah, I thought about that. I was debating between recommending screaming it so loudly and publicly so as to make it too risky for (at least physical) retribution, and what I wrote.
And since no competent legal analysis is complete without citation, I quote - SuperChicken. “You knew the job was dangerous when you took it!”
Ironically, at the time Harman wrote it, Porter Goss was the Chair of the House Intel committee, well, we know where he ended up…
Wow, TexBetsy!!! That’s wonderful! Go, girl!
If speaking honestly and openly in the Senate well is so safe, why hasn’t Senator Russ Feingold seen fit to do so much more often?
There are some breathing exercises (Pranayamas) which you do in a seated position and are really helpful in increasing strength and relieving pain.
707 !!!
There are more than a million folks in the bay area of northern Cali without power due to the storm. To our close friends out there, we are thinking of ya’ll.
lahoma and okk
I just want to know how many people we train to conduct torture and if they get enough vacation time.
Working on it, Petro. Bob Hamilton for Congress.
I’m his volunteer coordinator.
I think you ask yourself, what is the worst case scenario if this agency does X or Y?
Then you go ahead and do what you feel you must do.
That is great! Stay off that tree pose.
Learned a bit about that in chronic pain abt 4 yrs ago. Should go dig out my notes, eh? Or can you teach me online.
By “swimming” I really mean aquatherapy exercises, only 5 minutes of which actually look anything like swimming.
Belly breathing?
Raven, around here, if I pretend to be a tree, someone will build a tree house, decorate it, and fill it with people 24 hrs a day.
If we had never installed Sadam in secret..we wouldn’t have needed to remake him as a terrorist in secret.. Or the Shah or Noriega etc. etc.
I have a great buddy who left yesterday for a 10 day vippassana retreat in the mountains. Damn
Heh, anybody but Issa! ;-)
It’s all about what is best for you, not a competition. . .but then you knew that.
Vats of Gold! And more importantly, our dem challengers need your expertise. (Well, more important to me, but lots of gold for you!)
Excellent ! Just tell Bob not to lose his spine (AKA Reid) once he wins.
He/they should follow Wexler’s example.
Oh, forgot to mention, a few 30 minute watervolleyball games with old(er) ladies at the pool.
Hmmm. If we made the secret-keepers into patients, would HIPPA forbid our naming the secrets?
What’s the book series about Petro? Pardon if I’ve already asked this.
Can I have some of what y’all are having?
Thnaks kiddo, here in RWC the worst is over although there is more coming. Just not quite as powerful.
Anyone know how our SF area firepups are doing?
..380,000 without power in San Fran.
from Raw Story Breaking News
The Bay Area woke up Friday morning to a powerful storm system that brought heavy rain and hurricane-force winds to the region. PG&E told NBC11 285,430 customers were without power by noon Friday…
Hey Doc, long time. How’s it going?
Betsy @ 90 & PhysioProf @ 91 … Pranayama does involve deep breathing, and you also hold your fingers in certain positions to channel the Prana or Life force to specific parts of your body.
Betsy, a live teacher or Video/DVD is very important to learn the proper techniques, although I’d be glad to help by recommending which Pranayamas you do and which of them to avoid. Gmail me.
Speaking of watchers, Scott Horton has an interesting tidbit, culled from the Chicago Tribune, about a civil suit by Padilla against JOHN YOO. See, US v. Altstoetter, for the precedent whereby a government lawyer can be held liable for assisting in torture via legal opinions that give it - wrongly - the color of law. No doubt, things will get interesting for Yoo as well as Abu and others.
Mr. Horton reminds us that the offending portion in the Defense Authorization Act, which led to its quiet veto, is the part that specifically gave jurisdiction for US courts to hear cases by Gulf War One vets to sue Iraq for the wrongs done them - torture - by one of its prior governments, the one led by Sadam Hussein. I’d say Bush and Big Dick should be a tad worried about that precedent. Sauce for the goose and all that.
We need another Church Committee to e