Tu Quoque (Updated)

The lastest pushback from the Republican party on the released torture memos is the claim that Democrats knew about the techniques – waterboarding in particular – and raised no objections.

[A] full-blown battle has opened between House Speaker Nancy Pelosi, D-San Francisco, and her GOP counterpart, Ohio’s John Boehner about how much top Congressional leaders knew about water boarding in 2002. It is being fueled in part by a timeline released by the Senate Intelligence Committee, chaired by another California Democrat, Dianne Feinstein.

Boehner released news reports from 2007 that seemed to contradict Pelosi, and Pelosi’s office fired back with their own. Boehner said Congressional leaders “received an awful lot of information” about interrogations, and that “not a word was raised at the time, not one word. And I think you’re going to hear more and more about the bigger picture here, that … the war on terror after 9/11 was done in a bipartisan basis on lots of fronts.”

I agree entirely. In fact, this has been a long-running complaint among most progressives that the cotton candy ass Democrats in Congress did nothing to stop the erosion of civil liberties and the rule of law over the past eight years. But this misses the point. Whether and when Congressional leaders knew about waterboarding is of no import on the question of whether Bush officials violated the law. It is of political import, of course, and of moral import. It may even be of legal import for those Congressional leaders (see: the Ministry Cases from Nuremberg). But on the sole question of whether war crimes were committed, it doesn’t matter.

I also think that this argument from Boehner evinces a basic misapprehension about what is going on here. Republicans are making a political defense because they believe all of this ‘torture stuff’ to be a political attack. Likely because if roles were reversed it would be a political attack. But it isn’t now. The D.C. political class is frankly doing everything in its power to avoid dealing with this, largely, I suspect, because they do know they face a serious political downside both for being seen as partisan and for having ignored the issue for so long. If not complicit they were at least complacent.

For most, if not all, prosecution advocates, it doesn’t matter who committed the crimes. I would want prosecutions just as strongly if a Democratic administration had been the bad actor. War crimes should never be swept under the rug. And, just to head you off at the pass, the Clinton impeachment was different. I would have been perfectly happy to have had Bill Clinton arrested and tried for perjury the minute he left office, but impeachment is a political process in a way that a criminal investigation and prosecution is definitively not. And, of course, perjury cannot really be compared to war crimes in any meaningful way.

Finally, Speaker Pelosi, this response you’ve developed isn’t going to work.

At that or any other briefing, and that was the only briefing that I was briefed on in that regard, we were not — I repeat, we were not — told that water boarding or any of these other enhanced interrogation methods were used.

What they did tell us is that they had some legislative counsel — the Office of Legislative Counsel [sic] opinions that they could be used, but not that they would. And they further — further, the point was that if and when they would be used, they would brief Congress at that time, A.

B, I know that there are some different interpretations coming out of that meeting. My colleague, the Chairman of the committee, has said, ‘Well, if they say that it’s legal, you have to know that they’re going to use them.’ Well, his experience is that he was a member of the CIA and later went on to head the CIA. And maybe his experience is that if they tell you one thing, they may mean something else. My experience was they did not tell us they were using that. Flat out. And any — any contention to the contrary is simply not true.

Speaker Pelosi, you had at the very least a moral obligation to prevent the administration from violating the law and committing a war crime. The mere fact that they believed they could torture people should have prompted all kinds of outrage. When the first reports about Abu Ghraib came out in January 2004, it should have been easy to connect the dots. By the time the Bybee memo leaked in the summer of 2004, you had no excuse whatsoever for not addressing this. Do not play coy. You hold a great deal of moral responsibility for what happened here, even if it is nowhere near the amount that accrues to the Bush administration. You can begin to redeem yourself by admitting your failures – the public loves a mea culpa. But more than being the correct political move, confession is good for the soul.

Update: Glenn Greenwald makes this same point quite a bit better than I do.

Update 2: It is worthwhile to remember that whatever Congresswoman Harman’s other flaws, she did protest the torture program.

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