Media ignore question of whether Congress was briefed on torture dissent
SUMMARY: Reporting on the CIA document detailing briefings members of Congress and staff received about harsh interrogation techniques, media outlets have largely ignored whether members were told there was significant disagreement within the administration regarding their legality and efficacy.
Media outlets have repeatedly reported on the recently released CIA document detailing briefings members of Congress and staff received about harsh interrogation techniques, including what and when House Speaker Nancy Pelosi (D-CA) and other congressional Democrats knew about those techniques, but have largely ignored whether members were told there was significant disagreement within the administration regarding the legality and efficacy of these techniques. The issue is crucial to assessing whether congressional Democrats consented to the methods, as prominent Republicans and media conservatives claim. In the absence of full information, there can be no consent, a point the media have largely ignored in their coverage of the issue. If, as the evidence suggests, Congress was not told that experts within the administration strongly disputed the legality and efficacy of the methods, then the alleged failure on the part of members of Congress to object is irrelevant, and culpability for their alleged failure to respond lies with those who denied them information crucial to making a judgment about whether the administration was acting in the best interest of the nation.
For example, in its coverage of Pelosi's May 14 press conference, The Washington Post did not note that, during the press conference, Pelosi stated that Congress was not provided with "contrary opinions within the Executive Branch [that] concluded that these [enhanced] interrogation techniques were not legal." Moreover, according to a Media Matters for America review* of the Post's coverage over the past month of what Pelosi knew about these techniques, the Post has not reported on, or raised, the question of whether Pelosi was informed of any dissent within the administration over the use of these techniques. Those who dissented include legal experts from the FBI and military who contested the Justice Department's determination that these EITs were legal; FBI and CIA counterintelligence experts who had reportedly expressed opposition to, and disputed the effectiveness of, the methods; and experts from the military's Survival, Evasion, Resistance, and Escape (SERE) program who similarly expressed concerns about the efficacy of subjecting detainees to harsh interrogation techniques modeled after ones used in the SERE program. Media Matters has previously documented a recent pattern of the media minimizing the Bush administration's role in the torture debate.
LEGAL OBJECTIONS
In a May 15 Washington Post article on Pelosi's press conference, staff writer Paul Kane wrote that Pelosi's critics "contend that top Democrats were aware that CIA interrogators were using waterboarding, or simulated drowning, and that their support waned only after its use became public and led to an outcry from human rights activists." Similarly, in a May 15 Post analysis, national political correspondent Dan Balz wrote, "Conservatives say that, if Pelosi was so opposed to torture, she should have spoken out forcefully when she learned that these techniques were being employed. Her failure to do so then leaves her in a weakened position to protest now, they argue." But Kane and Balz did not note that, during her press conference, Pelosi stated that she was not told "there were other opinions within the executive branch that concluded that these interrogation techniques were not legal."
According to a May 2008 report from the Justice Department's office of the inspector general, following a meeting with FBI counterterrorism assistant director Pasquale D'Amuro "in approximately August 2002," FBI Director Robert Mueller determined "that the FBI would not participate in joint interrogations of detainees with other agencies in which harsh or extreme techniques not allowed by the FBI would be employed." D'Amuro recommended that the FBI not participate in part because "the use of the aggressive techniques failed to take into account an 'end game.' " D'Amuro added, "[E]ven a military tribunal would require some standard for admissibility of evidence. Obtaining information by way of 'aggressive' techniques would not only jeopardize the government's ability to use the information against the detainees, but also might have a negative impact on the agents' ability to testify in future proceedings." Additionally, in a November 27, 2002, legal analysis, FBI deputy director Marion Bowman wrote that several of the enhanced techniques -- including "[u]se of wet towel and dripping water to induce the misperception of drowning" -- "are not permitted by the US Constitution" and may violate the federal torture statute.
Further, a November 20, 2008, Senate Armed Services Committee report, released jointly by chairman Carl Levin (D-MI) and ranking member Sen. John McCain (R-AZ), documented concerns the military services expressed, including that the enhanced techniques -- requested for use at Guantánamo Bay and authorized by Donald Rumsfeld on December 2, 2002 -- could not withstand legal scrutiny. On November 1, 2002, the Air Force commented on the request by expressing "serious concerns regarding the legality of many of the proposed techniques." The Marine Corps stated in a memo that "several of the Category II and III techniques arguably violate federal law, and would expose our service members to possible prosecution," and that the Corps "disagree[d] with the position that the proposed plan is legally sufficient." The Army, in turn, replied that it "interposes significant legal, policy and practical concerns regarding most of the Category II and all of the Category III techniques proposed." The committee report stated that a legal review subsequently initiated by Capt. Jane Dalton, legal counsel to the Joint Chiefs chairman, was "[q]uashe[d]" by Department of Defense general counsel Jim Haynes.
