Last week, Speaker of the House Nancy Pelosi revealed that she had been briefed by the CIA about waterboarding in September 2002, although she argues that there was little she could have done in response. While Pelosi has been a vocal and vehement critic of the Bush administration and waterboarding, but claims she saw little way of challenging the use of waterboading, and other controversial interrogation tactics, but to win control of Congress for the Democratic Party. Meanwhile, in her column yesterday, Maureen Dowd asserted that "the question of what Pelosi knew or didn’t, or when she did or didn’t know, is irrelevant to how W. and Cheney broke the law and authorized torture."
This is an absolutely absurd argument, because it completely misses the point. The critical question to understanding the debate surrounding the use of waterboarding is to determine whether waterboarding qualifies under existing US and international law as torture. That's what the OLC memos were attempting to do: define the parameters of torture and determine on what side of the line waterboarding falls. Now those memos were often fast and loose with the law, and display some seriously shoddy methodologies; but, that does not inherently make them illegal.
If the OLC and the CIA believed that Congress knew about their legal determinations and the use of waterboading, it's perfectly reasonable for both offices to assume that, in fact, there aren't any seriously problems with their legal rationales or the use of the technique. As Justice Jackson explained in the famous Youngstown decision (the Steel Seizure case during the Korean War), when the executive branch takes an action that is not contested by Congress, which in turn signals tacit approval or acceptance, the tendency is to assume that the action is in fact legal and within the purview of presidential power. By failing to act in any way to protest, block, or outlaw the use of waterboarding, congressional leadership sent a message of acceptance.
But what of Pelosi's claim that there was nothing she could do other than try to take control of Congress? The Democrats have controlled Congress since the midterm elections of 2006 and has not tried to outlaw waterboarding (Senator Kennedy tried to attach an amendment banning waterboarding that was rejected, and Congress passed a bill forcing the CIA to adhere to the techniques approved in the US Army Field Manual which was vetoed and not repassed). And since January 2009, the Democrats have controlled the House, the Senate, and the presidency...guess how many bills banning waterboarding have been passed?
It does matter what Pelosi knew and when. It does matter what stance on these issues Congress takes. Congress is the enacter of the laws, and the laws on torture are frustratingly vague and open to different interpretations. If Congress doesn't trust the presidency to interpret those laws acceptably, it is incumbent on Congress to pass clarifying legislation. When the executive branch acts with the knowledge of Congress and without protest, it is only right to assume that the action is legal.
As I have said several times before, if Congress REALLY cares about this issue, it must pass legislation outlawing waterboarding or restricting the CIA to the Army Field Manual techniques immediately. If it doesn't, it is placing its trust in an executive order issued by President Obama, an order than can be undone by a subsequent order. And does Congress really trust Obama -- the very same Obama who has kept the policy of extraordinary rendition, slowed the withdrawal from Iraq, revived the use of military commissions, invoked the states secret privilege, etc. -- that much?