Is Pelosi a War Criminal?

House Speaker Nancy Pelosi — then the ranking Democrat on the House Permanent Select Committee on Intelligence — was briefed on CIA interrogation techniques including waterboarding when they were begun in 2002.  She was among the “Big Eight” present at the briefings — the Senate and House leaders and chairmen and ranking members on both intelligence committees.

Condemning the disclosure of the Justice Department legal opinions that detail the interrogation methods and the reasons they were legal at the time, Rep. Pete Hoekstra (R-Mi) wrote in the Wall Street Journal that, “It was not necessary to release details of the enhanced interrogation techniques, because members of Congress from both parties have been fully aware of them since the program began in 2002.”  

On Fox News Sunday, Sen. Christopher Bond (R-Mo), ranking Republican on the Senate Permanent Select Committee on Intelligence, said “…when the enhanced interrogation techniques were used, they were briefed to the chairs and ranking members in both Intelligence committees.  And if Speaker Pelosi and Jay Rockefeller thought they were excessive, should not have been done, they should have said something then.  There was plenty of opportunity to do it, and they didn’t.”

But what if Pelosi and the other Democrats had objected?
Sen. Bond told me in a Friday interview that, “We know that when we object to planned activities by the CIA, they don’t do it.”  

Pelosi didn’t stop the CIA by objecting.  And neither did any of the other Democrats who were briefed at the time:  then-SSCI Chairman Bob Graham (D-Fl), Sen. Harry Reid (D-Nev), and Sen. Jay Rockefeller (D-WV).  

Attorney General Eric Holder has said that waterboarding is torture.  So will his first indictment for permitting it to happen be against Pelosi?  

Pelosi is just as guilty as George Bush, Dick Cheney, Condoleeza Rice, other members of Congress who were briefed in detail on the CIA interrogation program, the Justice Department lawyers who wrote the opinions and the CIA personnel who crafted the interrogation program.  But none is guilty of any crime if, as it appears, they obeyed the law as it was written then.

The Democrats and their amen chorus in the media have been comprehensively wrong about the legality of the CIA interrogation methods.  Their confusion — intentional or not — comes from the fact that the law has changed dramatically since 2002.  What was illegal then is not the same as what is illegal now, and before anyone is prosecuted for anything, we have to understand what the law was at the time.

At least since World War 2, the U.S. law on the treatment of prisoners of war always outlawed torture.  That law was expressed in the Uniform Code of Military Justice which, from 1951 to the present, made it a crime for a military member to be guilty of cruelty toward, or oppression or maltreatment of any person (including prisoners) subject to his orders.  It went on to say that cruelty, oppression or maltreatment must be measured by an objective standard but may include acts such as kicking someone in the stomach or confining them for twenty-four hours without water.

(The West Virginia Army Reservists convicted of maltreatment of prisoners at Abu Ghraib were tried under the UCMJ which since about 1984 also included some kinds of sexual harassment in the examples of maltreatment.)  

And that was the US law until 1994, when the Senate ratified the 1987 UN Convention Against Torture (UNCAT).  In ratifying it, Congress made ratification conditional on implementing legislation.

The Senate Foreign Relations Committee report recommending ratification of UNCAT said, “The term ‘torture,’ in United States and international usage, is usually reserved for extreme, deliberate and unusually cruel practices, for example, sustained systematic beating, application of electric currents to sensitive parts of the body, and tying up or hanging in positions that cause extreme pain.”

Implementing UNCAT, Congress enacted Title 18 US Code Section 2340 which made torture committed outside the US by a US soldier or civilian government employee, a federal felony.

The US statute defined torture clearly. It said that torture was, “…an act committed by a person under color of law specifically intended to inflict severe physical or mental pain or suffering (other than incident to lawful sanctions) upon another person within his custody or physical control.” To avoid being struck down as unconstitutionally vague, the law went on to define terms undefined in UNCAT including “severe mental pain or suffering.” US law defined that term as, “…the prolonged mental harm caused by or resulting from…” (1) intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or threatened administration of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; (3) threat of imminent death; or (4) a threat to do those things to a third person.”

That was the law in 2002 when the CIA devised its interrogation program for terrorist detainees.  And that was the law which the Department of Justice lawyers had to apply to the CIA interrogation program until the law changed three years later.

The CIA program was created to be within the law.  The interrogation program was intended to shock, surprise and scare detainees into revealing valuable intelligence information.  And that’s what it did.  

(Former FBI interrogator Ali Soufan says he obtained important actionable intelligence from al-Queda big Abu Zubayda using normal FBI methods.  Intelligence community sources insist Soufan’s statement is utterly false.  Soufan – according to FEC records – donated $2300 to the Obama campaign in October 2008).

Under the 2002 version of the law – Title 18 US Code Section 2340 – waterboarding was legal because it didn’t cause prolonged psychological harm.  That is precisely the basis for the August 2, 2002 legal opinion signed by then-Assistant Attorney General Jay Bybee which found – on the basis of extensive psychological evidence on waterboarding obtained in military training in which almost 27,000 men were subjected to it – that waterboarding didn’t cause prolonged psychological harm.  

People in the media – including, unfortunately, some conservative commentators – have said repeatedly that the legal opinions are outrageous and abominable.  That statement betrays a profound ignorance of the law as it stood when the opinions were written.

They conflate the 2002 law with what it was amended to say in 2005. Sen. John McCain sponsored and Congress passed an amendment to the law to include “cruel, inhuman and degrading” treatment in the definition of torture.  Congress had previously limited the UNCAT ratification to exclude those terms because no one can define them.   But from then on, waterboarding – at least degrading and cruel – was against the law.  Not before.

About one hundred high-valued detainees have been captured since 9-11.  Of those, three have been waterboarded.  And the waterboarding stopped some time in mid-2003.

From a host of press reports, we can conclude that among the Bush administration officials who knew of waterboarding and approved it was Condoleeza Rice, then National Security Advisor.  Not included was then-Defense Secretary Donald Rumsfeld, who wasn’t made aware of the CIA interrogation methods until after the waterboarding had been ended.  Rumsfeld and Colin Powell — according to a Senate Intelligence Committee report — were both briefed on the interrogations for the first time in September 2003.

(In fact, according to the July 14, 2004 testimony before the House Permanent Select Committee on Intelligence of Stephen Cambone – then Undersecretary of Defense for Intelligence – Rumsfeld refused to approve waterboarding by Defense Department interrogators on December 2, 2002 when the CIA was doing it.)

In her Washington Post column Sunday, the otherwise admirable Kathleen Parker accuses the Justice Department lawyers who wrote the opinions on the CIA interrogation methods of torturing the English language trying to justify the unjustifiable.  She says that if we have to ask if something is torture, it probably is.

That brings to mind the famous concurring opinion in the 1964 Supreme Court decision in Jacobellis v. Ohio, regarding an allegedly pornographic movie.  

Justice Potter Stewart, never characterized as a leading intellect on the court, wrote “…that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography.  I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

But fortunately for Nancy Pelosi and all the others who knew the details of the CIA interrogation program and didn’t object to it, we are a nation of laws, not of Potter Stewarts.  What the law was in 2002-2005 is not what it is today or may be tomorrow.  

The law is what it is, and was what it was, and punishments cannot be meted out on the basis of what liberals now wish it might have been.