Sen. Arlen Specter, the ranking committee Republican, after noting his previous support for judicial review of the Bush administration’s terrorist surveillance program, referred to the recent disclosures of Office of Legal Counsel memos as potentially supporting the case for prosecutions.
“You’ve had some rather startling disclosures, with the publicity in recent days about unusual—to put it mildly—legal opinions” to justify broad executive actions, including homicide. “They’re all being exposed now,” he said, and noted that a forthcoming report from the Office of Professional Responsibility in the Justice Department will likely expose even more. They’re “starting to tread on what may disclose criminal conduct,” he said.
Rather than going off “helter-skelter” and conducting a “fishing expedition,” said Specter, “it seems to me that we ought to follow a regular order here … If there’s reason to believe that these justice department officials have given approval for things that they know not to be lawful and sound, go after them.”
While at the same time, Speaker Pelosi keeps waffling, and standing on the statement she gave in December:
On one occasion, in the fall of 2002, I was briefed on interrogation techniques the Administration was considering using in the future. The Administration advised that legal counsel for the both the CIA and the Department of Justice had concluded that the techniques were legal.
I had no further briefings on the techniques. Several months later, my successor as Ranking Member of the House Intelligence Committee, Jane Harman, was briefed more extensively and advised the techniques had in fact been employed. It was my understanding at that time that Congresswoman Harman filed a letter in early 2003 to the CIA to protest the use of such techniques, a protest with which I concurred.
This is a carefully, oh-so-carefully parsed statement, in which Pelosi says she only knew that the Bush administration asserted the authority to use enhanced interrogation techniques, but had no evidence that they did so.
Pelosi further claims that her hands were tied by national security concerns:
These are issues you can’t even talk to your staff about. And that just isn’t right. Because it gives all the cards to the administration. And if you say anything about it you have violated national security … and that’s what we’re going to change. You don’t want any president, Democrat or Republican, to have that kind of authority.
There are two responses here.
Number one: the dodge that all they did was assert the power, not tell me they'd used it, is meaningless. Jacob Hornberger makes precisely this point with considerable passion:
Sure, pro-tyranny advocates might respond by saying that Bush didn’t abuse his powers, while Hitler did, but doesn’t that miss the point? The point is not whether America has had a more benevolent dictator for the past 7 years than the German people did under Hitler. The point is that both the German people and the American people were living under some form of dictatorship — a type of political system in which there are no constraints on the power of the ruler. Remember: dictatorship entails the existence of omnipotent power, even if such power isn’t always being exercised to its full extent.
In other words, the crime starts when you assert the authority to exercise illegal power, not when you actually use it.
Number two: the national security dodge doesn't work for Ms. Pelosi, either. Unless she plans to join both the Bush and Obama administrations in the assertion that anti-terrorism actions are above the law (especially above judicial or congressional review), then the idea that she could be briefed on plans to break the law and then silenced by national security concerns is preposterous. She swore an oath to protect the Constitution, and that oath--certainly morally, if not legally--supercedes such muzzling.
Maybe she's worried that Senator Patrick Leahy is also willing to go after complicit Democrats as well.