The WSJ's Curious Picture of Congress and Torture

I was overly optimistic about the head cold fog I’m in today. But a couple of details from the WSJ editorial Christy linked to yesterday are stuck in my craw.

The editorial is an attempt to warn Congressional Democrats against pushing for a (as the WSJ calls it) "Truth Commission" to investigate the Bush Administration’s torture policies.

In particular, at [Panetta’s and Bair’s] nomination hearings they’re likely to be asked to support a "truth commission" on the Bush Administration’s terrorist interrogation policies. We hope they have the good sense to resist. And if they need any reason to push back, they could start by noting the Members of Congress who would be on the witness list to raise their right hands.

It then lists the Democrats it believes would serve as witnesses in such an investigation: it names Pelosi specifically, it deals with Jane Harman’s public objections to torture, and also invokes Intelligence Committee leadership and–after 2006–membership more generally.

Now, I’ll come back to this individualized focus in a second. But here’s the paragraph that has really got me thinking.

The real — the only — point of this "truth" exercise is to smear Bush Administration officials and coax foreign prosecutors into indicting them if Mr. Obama’s Justice Department refuses. The House and Senate Intelligence Committees already possess the relevant facts, and Senator Carl Levin and his staff have spent two-and-a-half years looking at mountains of documents — with nothing to show for it.

Carl Levin, the editorial claims, spent two-and-a-half years looking at documents, with nothing to show for it.

What a remarkable claim, given that the Executive Summary of that not-quite-two-year investigation (since Levin took over as SASC Chair in 2007–the WSJ can’t even get its dates right) lists this as its first conclusion:

On February 7, 2002, President George W. Bush made a written determination that Common Article 3 of the Geneva Conventions, which would have afforded minimum standards for humane treatment, did not apply to al Qaeda or Taliban detainees. Following the President’s determination, techniques such as waterboarding, nudity, and stress positions, used in SERE training to simulate tactics used by enemies that refuse to follow the Geneva Conventions, were authorized for use in interrogations of detainees in U.S. custody.

And this as unlucky conclusion 13:

Secretary of Defense Donald Rumsfeld’s authorization of aggressive interrogation techniques for use at Guantanamo Bay was a direct cause of detainee abuse there. Secretary Rumsfeld’s December 2, 2002 approval of Mr. Haynes’s recommendation that most of the techniques contained in GTMO’s October 11, 2002 request be authorized, influenced and contributed to the use of abusive techniques, including military working dogs, forced nudity, and stress positions, in Afghanistan and Iraq.

According to the WSJ, proving that Bush and Rummy’s actions led directly to torture equates to "nothing to show for it."

But I’m even more amused by the WSJ’s claims given Levin’s statements to Rachel Maddow on December 17 (linked above).

LEVIN: What I think is our role to do is to bring out the facts which we have to state our conclusions, which we have, which is where the origin of these techniques began. And then to turn over to the Justice Department of the next administration – because clearly this Justice Department is not willing to take an objective look – to turn over to the next Justice Department all the facts that we can, and we have put together, and get our report, the rest of it declassified.

But then it seems to me it is appropriate that there be an outside commission appointed to take this out of politics, that it would have the clear subpoena authority to get to the parts of this which are not yet clear, and that is the role of the CIA.

We looked at the role of the Department of Defense, but the role of the CIA has not yet been looked at, and let an outside commission reach the kind of conclusions which then may or may not lead to indictments or to civil action. But it is not our role, it’s not appropriate for us to make those kinds of – reach those kinds of conclusions. [my emphasis]

Shortly after releasing the conclusions of the "nothing to show for it" investigation, Levin said three things: that Obama’s DOJ should take the conclusions of the report and consider them objectively, that SASC should declassify the balance of its report (meaning that some of the "nothing to show for it" claim can be attributed to BushCo’s unwillingness to declassify embarrassing information), and that "an outside commission" should "get to the parts of this which are not yet clear, and that is the role of the CIA." And those actions, Levin notes, "may or may not lead to indictments or to civil action."

Sure doesn’t sound like a "nothing to show for it" report to me.

But Levin’s statement is significant for a few more reasons. After all, he emphasizes that CIA’s role in this has not been looked at. 

As a reminder, in 2006 when Bush admitted to the torture program, Carl Levin was a senior member of the Senate Intelligence Committee. Now, as the Chair of SASC, he’s an Ex Officio member. Levin was at those briefings that the WSJ reports all SSCI members started getting in 2006. But he says the CIA’s role in this has not been looked at. 

So the WSJ looks at an investigation that–by design–looked solely at torture emanating out of DOD’s chain of command, and says that it found nothing to show for it. The guy in charge of that investigation says the report specifically leaves out CIA’s role. And, since that same guy attended the briefing for the entire SSCI membership in 2006, he either said that knowing what was included in that confidential briefings–or having reason to believe that briefing was incomplete. And, finally, Levin advocates "an outside commission"–precisely the kind the WSJ opposes–to get to those parts which have not been revealed.

Boy, invoking Levin’s investigation sure doesn’t help the WSJ’s case.

Now, back to the WSJ’s invocation of specific Democrats. The WSJ names Bob Graham and Jello Jay (Jello Jay took over from Graham at SSCI in 2003; the WSJ does not mention Reyes, who took over HPSCI in 2007) as having been briefed between 2003 and 2006. But, as I said, it focuses primarily on Pelosi and Harman.

There’s a weird detail about this to begin with. Since BushCo routinely broke the law and only briefed Intelligence Committee leadership (and not Congressional leadership) on these things, Pelosi was only getting briefings through 2002, when she was Ranking Member on HPSCI. The WSJ does date the briefings back to 2002.

According to our sources and media reports we’ve corroborated, the classified briefings began in the spring of 2002 and dealt with the interrogation of Abu Zubaydah, a high-value al Qaeda operative captured in Pakistan.

But then, the timing of the briefings starts to get fuzzy.

In succeeding months and years, more than 30 Congressional sessions were specifically devoted to the interrogation program and its methods, including waterboarding and other aggressive techniques designed to squeeze intelligence out of hardened detainees like Zubaydah.

Followed by a clear timeline again, but this time one that excludes Pelosi.

The briefings were first available to the Chairmen and ranking Members of the Intelligence Committees. From 2003 through 2006, that gang of four included Democrats Bob Graham and John D. Rockefeller in the Senate and Jane Harman in the House, as well as Republicans Porter Goss, Peter Hoekstra, Richard Shelby and Pat Roberts.

In other words, the WSJ curiously includes–and then promptly excludes–Pelosi from participation in the substantive briefings (Graham should be excluded as well, since Jello Jay took over in 2003). That seems to be an admission, on the WSJ’s part, that Pelosi didn’t get the same detailed briefing about methods her successors got–a view reinforced by Pelosi’s own description of the one briefing she got.

On one occasion, in the fall of 2002, I was briefed on interrogation techniques the Administration was considering using in the future. The Administration advised that legal counsel for the both the CIA and the Department of Justice had concluded that the techniques were legal.

I had no further briefings on the techniques. Several months later, my successor as Ranking Member of the House Intelligence Committee, Jane Harman, was briefed more extensively and advised the techniques had in fact been employed. It was my understanding at that time that Congresswoman Harman filed a letter in early 2003 to the CIA to protest the use of such techniques, a protest with which I concurred.

Given the WSJ’s fuzzy sentence–the one that suggests "in succeeding months" Congress was briefed on techniques "including waterboarding," I’d say even the WSJ is not claiming that Pelosi was in the more substantive briefings in which torture was discussed.

Which brings us to Harman’s objection, which the WSJ calls "equivocal."

Ms. Harman did send a one-page classified letter in February 2003 listing her equivocal objections to the interrogation program. She made her letter public in January 2008 after the CIA revealed that it had destroyed some interrogation videotapes. After lauding the CIA’s efforts "in the current threat environment," she noted that "what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions." Ms. Harman also vaguely wondered whether "these practices are consistent with the principles and policies of the United States," but she did not condemn them as either torture or illegal.

But now compare their cherry-picked quotations from Harman’s letter with the full text of that letter.

Last week’s briefing brought home to me the difficult challenges faced by the Central Intelligence Agency in the current threat environment.  I realize we are at a time when the balance between security and liberty must be constantly evaluated and recalibrated in order to protect our nation and its people from catastrophic terrorist attack and I thus appreciate the obvious effort that you and your Office have made to address the tough questions.  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.

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?

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.

I look forward to your response.

Obviously, there’s a reason why Harman didn’t focus on the legal issues: because Scott Muller had done so in his presentation, and had emphasized that DOJ, NSC, and CIA lawyers had all bought off on the techniques. Inexcusable or not, now look at what the WSJ specifically excludes: the questions Harman had posed regarding high level approval by the White House–up to and including George Bush.

Here’s Muller’s non-answer to that question.

As we informed both you and the leadership of the Intelligence Committees last September, a number of Executive Branch lawyers including lawyers from the Department of Justice participated in the determination that, in the appropriate circumstances, use of these techniques is fully consistent with US law. While I do not think it appropriate for me to comment on issues that are a matter of policy, much less the nature and extent of Executive Branch policy deliberations, I think it would be fair to assume that policy as well as legal matters have been addressed within the Executive Branch. 

That is, he dodged her question entirely, emphasizing again the legal review that had taken place, but not George Bush’s personal policy review. 

And Harman’s question is precisely the issue before us now, the one that would be investigated by an independent commission (note, even the WSJ uses the word "policy" in describing the commission).

In other words, to make its case that Congress is implicated in torture, the WSJ mischaracterizes the SASC report (and Levin’s response to being briefed at SSCI) and hides Levin’s call for precisely the independent investigation WSJ opposes; it implicates Pelosi when its own timeline doesn’t implicate her; and it cherry-picks Harman’s letter to hide the fact that she was asking–in 2002–precisely the questions that remain to be answered.

Which leaves Bob Graham, who is no longer in Congress and who presumably got the same fuzzy Fall 2002 briefing Pelosi got.

And, finally, (it had to come to this) Jello Jay. Who, not incidentally, may be the only Democrat mentioned in the editorial who actually gets to ask Bair and Panetta questions at their confirmation hearings (I’m double checking on whether Levin gets to ask questions or not; I’m assuming, given his squawking the other day about Panetta, that Jello Jay will remain on SSCI even while moving to Appropriations and ceding the Chair at SSCI). 

The WSJ didn’t waste this entire editorial solely to threaten Jello Jay not to ask Leon Panetta for a Truth Commission, did it? Because this swiss cheese of an editorial surely won’t dissuade someone like Russ Feingold from asking such questions. In fact, why direct these questions to members of SSCI–those who will ask Bair and Panetta questions–in the first place? Last I heard, a Truth Commission was more likely to come out of HJC. And frankly, most of the members of HJC don’t give a rat’s ass about the threats WSJ makes about Jello Jay (though they may well have Pelosi to contend with over the nature of their investigation).

Don’t get me wrong. I have no doubt that Jello Jay, especially, and Harman and Pelosi, to a much lesser degree, are implicated in approving the torture program. But even the WSJ poses this as a policy question that–though they hide the proof that exists–we know was a question Harman asked directly. But what the WSJ is doing here is mischaracterizing all but Jello Jay’s implication in those policies (as far as we know). The whole thing smacks of flailing desperation once you unpack the false claims included in the editorial.l

  1. WilliamOckham says:

    They’re just trying to move the goalposts to establish the ‘Truth Commission’ as the farthest left position. They’re really worried about prosecutions.

  2. tejanarusa says:

    Dang,girl – if this is what you produce when your head is fogged with a cold….I’m in awe. When my head is fogged thusly, I’m lucky to be able to type a coherent sentence or three!

    But, substantively,—and not denigrating your exhaustive work in response— consider the source.

    It’s the WSJ editorial page, right? Any right-(er, left)thinking person knows they aren’t truthful.

    And, it’s obvious they don’t share your passion for creating accurate timelines.
    Anyway, I’ll rely on this if I run into any righties foolhardy enough to argue with me on the subject (it happens–there are some, sigh, in my own family).
    In the meantime, dear EW, make yourself some Constant Comment with extra lemon and honey and get some rest, knowing you have again produced the definitive refutation of another dumb-a-s wingnut’s dumb-a-s assertions. Take care of yourself!

  3. Peterr says:

    The WSJ didn’t waste this entire editorial solely to threaten Jello Jay not to ask Leon Panetta for a Truth Commission, did it? Because this swiss cheese of an editorial surely won’t dissuade someone like Russ Feingold from asking such questions. In fact, why direct these questions to members of SSCI–those who will ask Bair and Panetta questions–in the first place? Last I heard, a Truth Commission was more likely to come out of HJC. And frankly, most of the members of HJC don’t give a rat’s ass about the threats WSJ makes about Jello Jay (though they may well have Pelosi to contend with over the nature of their investigation).

    The WSJ used their editorial space on this precisely to get this misinformation out BEFORE Feingold & Co. ask their questions. If they can get this nonsense accepted as “true” before the confirmation hearings, then it makes Feingold and anyone else who pushes on this seem like they are out to lunch or blindly rabid partisans looking for scalps. In short, it’s a preemptive media blitz.

    But that’s not all it is. In Christy’s thread I made the following comment:

    This is pure pushback and preemptive CYA. The line in the quote used in the post above about members of congress on the witness list sound mighty like a lawyer in the Executive branch. “Nice place you’ve got here up on the Hill. It’d be a pity if anything happened to it. . . ” He’s mighty worried about his own skin and threatening to take down others if they come after him.

    Can you say David Addington?

    I think the firm of Addington, Yoo, & Associates are behind this piece, and the WSJ was more than happy to print it. Neither group wants the Bush administration actions looked into — Addington & Co., because they want to keep themselves and their BushCo friends out of jail; the WSJ, because they don’t want the Republican brand tarnished any more than it is, out of fear that four years out of power will turn into forty if more becomes known.

    • jdmckay says:

      Agree w/most everything commenters said here, although AFAIC this is par for the course for Gigot & co… crap.

      I do find it interesting that while they attempt triangulation threats towards Pelosi/Harman/Rocky etc., they actually seem to give kudos to Panetta… nothing in that article I see attacks him. But they do take Leon as an omen for “Truth Commission” and such, something I take as implicit testament to just exactly who Panetta is and what can be expected from him.

      With all the other crap floating around regarding him, noteworthy article in LAT on Wed that does a good job summarizing our new CIA chief. A couple excerpts for those unfamiliar with him:

      (…)His nine terms as a Democratic congressman from Monterey are well known, as are his highly successful stints as President Clinton’s White House chief of staff and as head of the Office of Management and Budget. His career embodies the kind of principled bipartisanship that Obama hopes will characterize his administration.

      Panetta, a graduate of Santa Clara University and its law school, actually began his political career as a Republican. He first went to Washington in 1966 as an assistant to Sen. Thomas Kuchel (R-Calif.) — yes, Virginia, California once had Republican senators. Panetta subsequently served as assistant to another leading California Republican, Robert Finch, who was President Nixon’s secretary of Health, Education and Welfare. Nixon then appointed Panetta director of the Office of Civil Rights.

      Civil rights, equal opportunity and equal justice are Panetta’s lifelong passions. In a memoir, he recounts how his determination to enforce the Voting Rights Act brought him into conflict with partisans of Nixon’s “Southern strategy,” who agitated for his firing. Panetta eventually resigned and went to work for New York’s liberal Republican mayor, John Lindsay. The GOP’s hardening animosity toward civil rights, however, ultimately forced him to switch parties.

      There’s more in there on history of CIA director’s successes, clearly painting picture that “spook experience” is not a pretext for success. Very good article.

  4. scribe says:


    I just wish to hell the Dems would stop being such a bunch of pussies on the issue of torture. It’s not like they could have done much to stop Bush from doing it back in 2002 – they had no control over committees in Congress, for starters.

    Remember how Sensenbrenner walked in on the minority hearing (in the basement hearing room to which they’d been exiled) and literally shut off the lights while declaring the hearing over?

    And doing as the WSJ editorial suggests – going onto the floor and pulling a Gravel (See Gravel (Senator Mike) v. United States) would, at best, have resulted in a Saxby Chambliss-esque assault on the congresscritter doing it and, at worst, DeLay, Hastert and the clowns in the Senate ramming through a bill ratifying all the conduct which was and is so objectionable.

    I’ve been reading Gibbon’s Decline and Fall of the Roman Empire lately and, as to how Octavian gutted the Roman Constitution and Senate, I keep coming back to “it’s not a history, it’s a Republican Party Instruction Manual”.

    And, now, we get Harry Reid, losing poker player.


    • tejanarusa says:

      Have you also read Barbara Tuchman’s “the March of Folly?” It pretty much explains all of history. Reading it was a turning point in my understanding of how the world works, and why people/leaders do such stupid, stupid things.

      I’ve been reading Gibbon’s Decline and Fall of the Roman Empire lately and, as to how Octavian gutted the Roman Constitution and Senate, I keep coming back to “it’s not a history, it’s a Republican Party Instruction Manual”.

    • bobschacht says:

      I’ve been reading Gibbon’s Decline and Fall of the Roman Empire lately and, as to how Octavian gutted the Roman Constitution and Senate, I keep coming back to “it’s not a history, it’s a Republican Party Instruction Manual”.

      Ah. Thanks for putting our present circumstances in historical perspective. I should be recommending this section of Gibbon to my Senators, including Blue Dog Inouye, one of the Gang that gave us Alito, IIRC.

      Bob in HI

  5. freepatriot says:

    truth commission ???

    where did that come from ???

    I got vision, and the rest of the world wears bifocals

    so how exactly do george an dick decline the opportunity to prove their actions are legal ???

    that pardon pen is lookin more like a suicide kit EVERY DAY

    start signin, georgie …

  6. klynn says:

    I knew Addington didn’t know how to write an editorial.

    Interesting and manipulative threat tact to hit at Levin when his state is quite vulnerable.

  7. Loo Hoo. says:

    Christy asked:

    So, the question is: intel professionals? If so, this is awfully ham-handed and obvious. Higher ups at DOD and CIA? Or Dick Cheney’s media planting CYA squad? Again, this is a bit obvious for folks that experienced in lowering the payback boom. Congressional staffers for particularly vulnerable members on these issues? Or all of the above?

    I’m guessing Cheney for sure, and others, probably.

  8. oldtree says:

    This might make one harken back to the end of the Weimar when Adolf needed his press to say what he wanted, not the truth. However, is it incredible that the WSJ would choose fascism over a representative form of government? They may realize it is all they have left. They are deeply entwined with the financial mess, and are likely to be buried with it. Perhaps they are simply advocating fascism as their benefactor?
    Stranger still, wagging a dirty little finger at anyone. Funnier still, that it is pointed at something a financial publication should have a lot to do with. Torture.

  9. radiofreewill says:

    That Op-Ed is a Neocon threat to ‘escalate’ on the Dems if they attempt to hold BushCo Accountable for the Lawlessness of the last eight years.

    Imvho, they are threatening to ‘out’ Jello Jay, Pelosi and Harman as Publicly Silent (Secret) Supporters of Bush’s Policies – who, at the same time, also wanted Political Cover if they got found out.

    And, given Our Illustrious Dems’ track record of Character Weakness, the threat may work.

  10. JohnLopresti says:

    I would like to see the gentlemen in congress protect Harman and Pelosi from Wall St Journal diatribes and partial truths. I think investigation will show that even in the threats of the times, those women showed more consistent bravery than most of their compeers. WSJ is owned by media conglomerate, now, right?

    I would like to see the corrupters of our prior humane policies, in house arrest without access to their private fortunes, living a life of ignominy and contemplation; the arts and brush clearing should be allowed. But no more crowing over torture.

    This needs to be restated in a new amendment to the constitution, instead of some boring truth commission led by compromised politicians to serve the newspeakish homeland.

  11. bobschacht says:

    OK, EW, I just spotlighted this diary to 10 national reporters, including 3 from the WSJ! We need some push-back against the WSJ on this so that it does not become CW!

    Bob in HI

  12. JTMinIA says:

    I know that the editorial wasn’t written for me, but I can’t help saying to myself: “self, they’re threatening to take down Jello Jay, Pelosi, Graham, and Harman; whatcha think about that?” To which I cannot help but reply: “self, is there any way we can toss Reid in there, too?”

  13. Mary says:

    Something Pelosi pretty much had to have known, though, was that when she was getting her briefing in 2002 as a member of the intel committee, that the Nat Sec Act rules for briefing the full gang of 8 were not being followed and when she became the part of the gang of 8 that was not being briefed, she did nothing about it.

    WSJ makes some big assumptions on what the Congressional briefings did and did not include, as well. There was a LOT more than Zubaydah going on vis a vis the torture front, including the disappearance of KSMs children and their use for enhanced interrogation options.

    In particular, though, I like the fact that while they try to make it sound that it would be a partisan vendetta against the Bush torturers to pursue criminal charges and investigations for their…crimes, on the flip side of that WSJ tries to argue that the reason the Democratic appointees should leave it all alone is that Democrats will be caught up in the investigation – “they could start by noting the Members of Congress who would be on the witness list to raise their right hands

    It’s interesting how State is left out of the list of lawyes who were approving the torture (CIA, DOJ and NSC) and how Bellinger at NSC, pliable then to torture, was popped over to replace Taft at State and helped Stated become torture compliant.

    WSJ also seems to forget Taguba’s calls for investigations like his of MI (something that Levin’s crew couldn’t really do with their document review and even some interviews) and his already existing information and Taguba’s recent bald statements about Bush war crimes.

    But from your excerpts, to me the really egregious part of the WSJ piece seems to be how they are basically moving the goalposts. They don’t even begin to go to the issue of criminal investigations – instead, they are acting shocked at the thought of even a truth commission and “smears” and the possiblity of “foreign prosecutors”

    That’s really what they’ve done – framed the discussion to make a truth commission the furthest reach of the wild liberal fringe, with actual domestic prosecution not even in the discussion. Notice that they don’t even mention the War Crimes Act, despite all the care and attention lavished on it by Fredo, et al.

    It’s been like the torture discussions that have proceeded from the proposition of the treatment of KSM, without even admitting that the torture murder of Afghan cab drivers, the torture of a stray Canadian who was almost successfully disappeared into permanent torture or torture death, and the disappearance of children and tossing of a torture killing victim’s body into an unmarked grave and the years of solitary confinement of bipolar souffle maker, etc. – those are never a part of the discussion, which proceeds instead from a “hey, what a little water in KSM’s face as a big deal” framing.

  14. Mary says:

    BTW – these are the “lawyers” that WSJ assumes gave Harman, Pelosi, et al a full and fair briefing, right?

    CIA Withheld Details On Downing, IG Says
    Shooting in Peru Killed Missionary, Infant

    An internal CIA probe has concluded that agency officials deliberately misled Congress, the White House and federal prosecutors about key details of the 2001 downing of an airplane carrying U.S. missionaries in Peru

    Even the White House was kept in the dark, as agency officials and lawyers withheld key details while cautioning their staff to avoid putting anything in writing that might be used later in a criminal or civil case, the inspector general said in a report.

  15. stryder says:

    another majestic triumph for the rule of law
    They’re not really laws anyway,they’re just “guidelines”,right?

  16. dopeyo says:

    may god forgive me for coming to pelosi’s defense, but as Mary points out, pelosi sat there in the briefings, knowing that the admin was not following the law by briefing the full gang of 8.

    silence presumes assent, we all know, but would you want to be the one to tell dick and george “hey, doncha know that *not* assembling the full gang of 8 could leave you open to to charges that you broke the law on *that* one too?”

    it could be filed under “give ‘em enough rope….” i’m keeping my fingers crossed, but i’m not holding my breath.

    but i can certainly hope to see pelosi, right hand raised and testifying “i never approved waterboarding, and no, i didn’t inform mr. cheney that the whole briefing was moot without the full gang of 8. i’m not an attorney, i’m just an italian grandmother from san francisco.”