What Pelosi Knew

Responses among the cognoscenti to the CIA's contention that it briefed Nancy Pelosi on the use of enhanced interrogation techniques are fairly typical. Those inclined to defend Democrats point to the CIA's history of misleading Congress and the incomplete record the CIA's notes sketch out; those inclined to indict Pelosi are throwing out terms like "hypocrite" and worse. The document itself is an interesting artifact of our intelligence culture and its relationship to the oversight committees. The White House might have been reluctant to share details of certain programs; it's hard to know what the CIA's motives were. By statute, they're required to provide Congress with information that holds themselves accountable, and Congress's ability to independently verify these facts is very limited. Pelosi and Porter Goss were the two ranking members of the House Intelligence Committee. That they were the only two so early briefed shows how highly classified and sensitive the program was at the time. It was probably an "Unacknowledged SAP" -- a "special access program," meaning that it was not only classified, dissemination of information about the program had to be communicated through highly classified channels.
2009-05-06 EIT ENCLOSURE0001.pdf

Let's peel back a layer or two about these briefings. Goss, a former CIA case officer, was in a much better position to process the information contained within the briefing than Pelosi. There is no evidence that either Goss or Pelosi objected to the "EITs" -- as the CIA still calls them. Pelosi last week said she had no idea that EITs were even being used and insisted that the subject of waterboarding never came up. That's hard to swallow, even if you believe the claim about waterboarding.  Why would the CIA even brief Pelosi about EITs if it had no intention of using them?

CIA officials and intelligence committee staff members will tell you that members rarely, if ever, object to anything in these briefings. Imagine the multiplier effect of 9/11, when most Democrats were intimidated by the muscle-flexing of the Bush Administration. Let's assume, for the sake of a hypothetical, that Pelosi had wanted to object. What she could have done -- and this does happen, occasionally -- is to walk out of the briefing, telling those CIA officials who came that what she just heard did not constitute a formal briefing, and that she would record, for her own records, that the CIA did not brief her on the subject.  The CIA briefers would then return to Langley and inform their supervisors that Pelosi walked out of the briefing, mid-stream. Since CIA felt it was required to brief her -- and since Pelosi declared herself not briefed -- the CIA would then be compelled to try to re-brief her -- and would probably send a high-ranking official who could better explain the program.

In general, the CIA briefers tend not to be the same people who execute the programs; they tend not to be the supervisors who oversee them; they tend not to be the senior officials who set policy. That's why Pelosi couldn't simply -- or wouldn't simply -- voice an objection during the original briefing. Her briefers were middlemen.

There's no evidence from the CIA records that Pelosi did anything but passively accept the briefings -- at which point the CIA could content itself with the knowledge that the ONLY outside source of accountability was sufficiently read in to the program and did not object to it.

One can't help but conclude that while Pelosi might not have known everything, she knew enough. And in today's political climate, that's kind of tough. But back in 2002, when more Americans (probably) supported those techniques than they do now (and most Americans support at least some of the EITs), and when Pelosi herself did not have the means or the legal knowledge to perform her own analysis of the legality of the techniques, and when the climate of dissent was quashed -- her reaction is understandable... maybe not, from our current perspective, excusable, although there is a range of opinion on that question.

Based on several years' worth of distance, it's easy to conclude that Congress failed to police the CIA. But Congressional oversight of these matters has never been forward-looking. Congress is ill-equipped to monitor CIA operations in real-time; it cannot look over the shoulder of every National Security Agency analyst who picks up someone on a wiretap. And -- in an environment where the threat of terrorism was real -- we might wonder whether the type of Congressional oversight we seem to want would be more harmful than productive. We want the CIA to think twice before doing something naughty, but we don't want Congress to preemptively prevent the CIA from bribing, say, a source with a prostitute. We really don't. That's why our casting about for blame ought to end with political leaders who make policy decisions -- which is, in fact, where the blame for this program does reside.

Especially now, the briefing culture provides the opportunity for intense public jostling. Remember the story, from a month ago, about how the NSA was having trouble meshing its collection technologies with laws against domestic surveillance? As soon as it "broke," members of the intelligence committees were quick to express their outrage and vowed to investigate. Well. The sources for the story had come from Congress. How did Congress know? The NSA had briefed them privately, well before the story came out. The "outrage" here -- the "surprise" -- was manufactured. I wager, however, that the reason why the story became a story in the first place was because Congressional officials -- staffers, members, I don't know who -- believed that the problem wasn't being solved. Nothing kills bacteria more quickly than the harsh disinfectant of public exposure.

My ahems and caveats don't obviate the need for some reform. Congress can change the law and custom to require CIA to brief entire committees, not just chairs; we can allow more staff in the room -- staff with experience in these matters. There are plenty of quasi-governmental intelligence oversight mechanisms, like the President's Intelligence Advisory Board. Perhaps it can be the repository of complaints and questions -- and it can adjudicate disputes. (Maybe Congress can appoint some positions to that board).

Who knew what, when, and why are more complicated questions than they appear to be. And it would be helpful if Congress were to channel this discussion into something more productive.