Jane Harman's Principled Stand Against Torture

As the ranking member of the House Intelligence Committee, Jane Harman was a member of the "Gang of Eight", and one of the congresspersons briefed on the secret and extralegal Administration programs (Surveillance, Interrogation) in the "War on Terror."

We now know that Jane Harman was briefed on videotapes of interrogations of al Qaeda captives in 2002, and knew details of CIA interrogation methods.

Yesterday, Jane Harman released the text of a letter to the CIA written in 2003 urging that videotapes of interrogations of al Qaeda captives be preserved.

Her strongly worded letter was unfortunately ignored, and the torture tapes were later destroyed.

Nonetheless, Rep. Harman's principled stand against torture should give us comfort that she is acting in good faith as she continues to lead the Blue Dogs in ongoing compromises with the GOP on Warrantless Wiretapping, TelCo amnesty and other issues that place the Administration in conflict with the Constitution and Rule of Law....Right?

Wrong

For the full text of her strongly worded letter, the PDF is here.

In the letter, Rep. Harman seems to accept the Administration's contention that the Torture Techniques were legal:

At the briefing you assured us that the [redacted] approved by the Attorney General have been subject to an extensive review by lawyers at the Central Intelligence Agency, the Department of Justice and the National Security Council and found to be within the law.

Although she accepts Torture as legal, she expresses concern that the "enhanced techniques" raise "policy questions":

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?

In the end she advocates that the Torture Tapes be preserved for proof that the written record of the interrogation is correct, and her argument ends with concern that the CIA would look bad if the records were destroyed:

You discussed the fact that there is videotape of Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry. I would urge the Agency to reconsider that plan. 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. The fact of destruction would reflect badly on the Agency.

Well she was certainly correct that the CIA looks bad after destroying the tapes.  But more importantly, I believe that Rep. Harman's letter and the CIA response reveal that the entire concept of congressional oversight is a fraud.

Underscoring this concept, the CIA response is completely non-responsive to Rep. Harman's questions, and despite Harman's strongly worded letter, they destroyed the tapes.

So no effective oversight, but a paper trail that Rep. Harman "objected" to destruction of the tapes, thereby relieving her of charges of complicity in the torture regime....?

Marty Lederman raises the same points that I have here:

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.

Conclusion
Although Jane Harman may be proud of her "oversight", I think Lederman has it right: Rep. Harman is a part of a dysfunctional oversight mechanism that has been central in enabling this Administration to do anything they want, Constitution and Law be damned.

In the end, I am not so excited about her "principled stand", and continue to have questions about her role in forging compromises with the GOP in passing new FISA legislation.  

But more importantly, I am aghast at the profound and pervasive corruption of oversight that has characterized the past 7 years of this Imperial Presidency.  

I am angered that so many of our elected leaders have neglected their duties to uphold their oaths of office in protecting the Constitution.

And I am frightened by the fact that so many of our representatives seem to have rejected the Principles and Moral Clarity upon which our great country was founded.