The Corner

Isn’t Pelosi Guilty Even on Her Own Account?

I used to be a prosecutor (though I didn’t play one on TV), so maybe it’s old habit, but I thought it might be useful to look at the governing statute. 

As I understand it from one of her multiple versions of events — which Madame Speaker seems to think are somehow exculpatory — she claims that the CIA told her it was planning to use waterboarding but hadn’t yet done so. As Karl Rove puts it in his excellent Wall Street Journal column today:

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.”

When questions were raised last month about these statements, Mrs. Pelosi insisted at a news conference that “We were not — I repeat — were not told that waterboarding or any of these other enhanced interrogation methods were used.” Mrs. Pelosi also claimed that the CIA “did not tell us they were using that, flat out. And any, any contention to the contrary is simply not true.” She had earlier said on TV, “I can say flat-out, they never told us that these enhanced interrogations were being used.”

In today’s news accounts, Pelosi ups the ante big-time by alleging that, in 2002, she was “told explicitly that waterboarding was not being used,” and, therefore, that the agency is lying when it claims to have told her it was. But — though I acknowledge she is confusing and at times incoherent — Pelosi does not appear to disclaim knowledge that waterboarding was at least in the CIA’s gameplan. And, indeed, she now says she learned waterboarding was being used from other lawmakers who attended other briefings in the ensuing months.

Now, back to the torture statute. I won’t rehash the now familiar provisions that explain what torture is. But I do want to focus our attention on a prong of the torture statute, Section 2340A(c), that hasn’t gotten much notice to this point:

Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

So I ask myself, “Self, what difference does it make whether Speaker Pelosi knew the CIA was waterboarding suspects or merely knew the CIA was planning to use waterboarding?” Answer: None. 

Unless a victim is killed by torture such that the death penalty comes into play (which is not alleged here), American law regards conspiracy to commit torture as something exactly as serious, punished exactly as severely, as actual torture. As it happens, I don’t think waterboarding as administered by the CIA was torture. But Pelosi says she does. If that’s where you’re coming from, how do you get off the hook by saying you only knew about a plan to torture but not actual torture?

To establish torture conspiracy, a prosecutor wouldn’t even have to prove an overt act in furtherance of the conspiracy. You just need to show that two or more people agreed to commit the prohibited act. Here, though, by her own account (or at least one of her own accounts), Pelosi knew the CIA was planning to use waterboarding and later learned it was actually being done. So, if Pelosi was told — as the CIA says she was — that waterboarding was being used, that’s another nail in the coffin.  But for a prosecutor, it’s just gravy — not at all necessary to the case. As Pelosi herself tells it, she was aware of a conspiracy to torture — which is just as significant under the law as torture itself — and she did nothing about it.

Finally, on the “did nothing about it” score, the lamest part of Pelosi’s defense is the claim that she didn’t need to register her dissent because she agreed with Rep. Jane Harman’s letter, purportedly “objecting to” the enhanced interrogation tactics. Here’s Harman’s letter. It contains no objection whatsoever to the tactics. 

Harman wanted clarification that President Bush approved and authorized the tactics — which is understandable: if congressional leaders were being asked to stick their necks out here, they obviously wanted to make sure President Bush’s neck was exposed too, and just in terms of good government it made sense to ask for assurance that the commander-in-chief was running the show. The only objection laid out in the Harman letter was to the notion of the CIA destroying a tape, not to the tactics recorded on the tape. The most sensible interpretation of that is that Harman (a) was understandably concerned about obstruction of justice claims down the road, and (b) thought any recording would be a good defense for the CIA and those briefed on the program if there were a later allegation that the CIA tortured the detainees.  But, again, the letter evinces no protest about waterboarding or other harsh interrogation tactics.

In any event, it seems to me that the Speaker is cooked even on her own version(s) of what happened here.

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