Rep. Harman did not object to CIA torture, agency warned interrogations illegal
The Washington Post today continues its coverage of the CIA torture tapes destruction. They report that destruction of the evidence was planned from 2003, when Congresswoman Jane Harmon objected. Of course, a close reading of her letter shows that Harman, didn’t object to the torture depicted in the tape, but only to the possibility of the tapes’ destruction, saying that destruction would “reflect badly” on the CIA, as it might destroy confirmation of interrogation records.
“Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future.”
Lacking from this top Democrat on the House Intelligence Committee was any complaint that CIA torture itself reflected badly on the CIA. By releasing this letter, Harman confirms that she acquiesced, at a minimum, to US torture. Any complaints about it now by her are not credible unless accompanied by an acknowledgment of past error.
Also at the end of the Post article is this tidbit:
“Helgerson [the CIA's Inspector General] concluded in his May 2004 report that the interrogations might violate international law, and he recommended changes in the treatment and handling of detainees.”
Thus, long before the tapes were destroyed, CIA officials had ample warning that they might well constitute evidence of a crime. Now I’m no attorney, but it certainly would seem that, with this warning, the destruction of the tapes constituted obstruction of justice.No need to parse admittedly ambiguous court orders ordering the preservation of evidence for terrorism trials. As Representative Conyers pointed out yesterday, we need an investigation of the real crime here — torture — and not only the secondary one of destruction of the evidence.
UPDATE:A correspondent has argued that I am unfair to Harmon here and that she was the only member of Congress briefed on the CIA’s “Enhanced technmiques” to object. I believe he is referring to this paragraph in her letter to the CIA:
“It is also the case, however, that what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions. I would like to know what kind of policy review took place and what questions were examined. In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States. Have enhanced techniques been authorized and approved by the President?”
This certainly expressed a cautionary note about the CIA’s techniques, which I should have included in my post.
This correspondent also pointed out that Harmon may not have been in a position to object to specific techniques on the CIA’s tapes if she was not given details as to their nature. This is true, though the Washington Post did report in their December 9 article on the CIA’s Congressional briefing, that the Congressional leaders briefed were informed about waterboarding:
“Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said….
Yet long before ‘waterboarding’ entered the public discourse, the CIA gave key legislative overseers about 30 private briefings, some of which included descriptions of that technique and other harsh interrogation methods, according to interviews with multiple U.S. officials with firsthand knowledge.”
So I should not have tied my concerns with Harman so closely to the destruction of the tapes. I feel she should, as a ranking Congressional intelligence leader, have gone further in attempting to reign in the CIA’s program. Others may feel that she did all she could, given the secrecy she worked under. Marty Lederman at Balkinization is another who feels that Harman’s stand, while the best out of Congress, was inadequate:
“[T]o her credit, in that February 2003 letter Harman asked whether the CIA practices that had just been described to her were ‘consistent with the principles and policies of the United States.’
But even more noteworthy is what is not in the letter:
Harman does not assert that the CIA techniques were torture or cruel treatment.
She does not insist that they 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 does not question the classification of the techniques.
She was apparently informed that the CIA tapes were not ‘official records’ that have to be preserved under the Official Records Act. She does not question that conclusion, even though the statute (44 U.S.C. 3301) broadly covers ‘all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them.’ “
Lederman points out that, if Harman had taken these steps, she would have lost her access to classified briefings and her leadership role on the House Intelligence Committee. That is true. But is is also true that she did little to actually impede the Bush torture regime as it unfolded.
Add comment January 4th, 2008