The claim that the Congressional Democrats who learned about waterboarding were hogtied by the Gang of Eight rules and couldn’t do anything about it is obvious hogwash. They could have:
1. Written a letter to the President, the Attorney General, and the DCI saying “On Date X we received a briefing about certain intelligence activities, still ongoing and carried out as a matter of policy, in clear contravention of both the criminal laws of the United States and of treaty obligations. We insist that those activities stop forthwith, and that those who have engaged in them be considered for prosecution.”
2. On the Senate side, demanded an Executive Session (no visitors, no staff) and named the date of the briefing, the briefers, and the word “torture.” Even if that leaked, without details it couldn’t constitute a security violation.
3. Filed a resolution naming the date of the briefing and ordering the members of the Gang of Eight to reveal what they were told to the two Houses. That resolution could have been accompanied by a statement saying “We have learned about serious violations of law being carried out as matters of policy. We think the Congress ought to have the option of either learning what we know or remaining in ignorance. In the meantime, we have demanded that the illegal activities stop forthwith.”
Now, whether they could have gotten away with this politically in the hypercharged atmosphere of 2002 is a different question. But legally they would have been in the clear; the Speech and Debate clause would have protected them.
Glenn Greenwald says this makes it impossible to make torture a partisan issue. I think this is wrong on two different levels: on the one hand, the partisan differnce is still pretty stark; on the other, campaiging against torture probably isn’t a winner in electoral terms in any case.
As supine as many Democrats have been, for at least the past two years the Democrats have been overwhelmingly anti-torture and the Republicans overwhelmingly pro-torture. And of course the Republican Presidential candidates except for McCain, Paul, and maybe Huckabee are fervently pro-torture, while the Democrats are now fairly solidly on the other side. An opponent of torture shouldn’t have any problem figuring out which party to vote for.
However, there’s no particular reason to think that opponents of torture constitute a voting majority. The cowardly Republicans and the cowardly mass media reflect, and help generate, a cowardly populace, so moved by hatred and terror (Phobos and Deimos) as to be willing to have unspeakable things done on their behalf. In crass electoral terms, John Kerry was probably right not to make torture an issue in 2004. The landscape has shifted since, but I doubt that running as the anti-torture party would, on balance, win votes for Democrats.
This is an issue that calls for leadership, defined as forcing a group to pay attention to the issue that it would rather ignore but had better not. I’d like to see the Democratic Presidential candidate make torture an issue because it’s the right thing to do, and because the Republican candidate is almost certain to be pro-torture. But since it’s not going to be a winning issue in partisan terms, the fact that some Democrats wilted under pressure is neither here nor there.
Now that we know how broken the Gang of Eight mechanism is, I’d like to see the Congress demand that it be given the information needed to carry out its oversight function. But I’m not holding my breath