Blog on the Run: Reloaded

Friday, May 29, 2009 6:25 am

Coulda and shoulda

In the debate about American torture of detainees, both I and torture apologists have taken the position that Democratic members of Congress, despite being in the minority for much of the period during which the abuse was going on, could have done more to stop it despite their briefings being secret. (The apologists do so despite the fact that doing so in effect is admitting that torture was committed and that it is a crime — their argument basically amounts to, “Well, our guys [i.e., Republicans] ain’t going down for this alone!” To which I respond: I’ve never said they should.)

bmaz at Emptywheel analyzes that legal question and agrees with me: Yes, Jay Rockefeller, Jane Harman, Bob Graham and Nancy Pelosi could have done more than they did (if, in fact, they did anything at all): They could have invoked the Constitution’s speech-and-debate clause (Article I, Section 6) to disclose, and criticize, the torture publicly in the House/Senate without fear of legal consequences:

What this means is that there existed a defined path for Pelosi, Harman, Rockefeller, Graham et. al to address their concerns and whistleblow the wrongs they were witnessing without any threat of prosecution, fines or other retribution. Jello Jay Rockefeller did not have to constrain his outrage to his hoky handwritten letter to Dick Cheney (yeah, like that was going to work). Jane Harman did not have to restrict her claimed outrage to her weak letter. Nancy Pelosi and Bob Graham didn’t have to sit on their hands and effectively do nothing.

I would argue that they either knew or should have known that this was the case, and that their failure to do so was at least negligence and arguably makes them accessories to war crimes. That doesn’t make them as culpable as the people who ordered those crimes to be carried out, but it makes them culpable nonetheless.

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