December 9, 2007

A number of the best internet commentators are discussing today's news that a few of the leading Congressional Democrats may have been - probably were - briefed about the administration's plans to torture (waterboard, and maybe more) suspected terrorists being held in secret CIA facilities abroad. There's confusion about the facts, with few of the people allegedly briefed confirming the story. Notably, however, it appears that of those briefed, only Rep. Jane Harman objected. (Note that we're still at an early spin stage here - more facts about who said what to whom are likely to come out.)

The emerging consensus in the blogosphere seems to be that even if they had the presence of mind to object, the Representatives and Senators who were briefed were in a bind: as members of the Intelligence Committees or the leadership, they signed various secrecy pledges which stopped them from going public. To go public, it seems to be agreed, was to "jeopardize their careers and risk jail" as Kevin Drum put it; even so, Matthew Yglesias suggests that this called for civil disobedience, and that the representatives should have dared the administration to arrest them.

All this misses a critical aspect of our constitutional structure. Thanks to the Speech and Debate Clause there was a way for any Senator or Representative who wanted to blow the whistle to do so in a way that involved no risk of jail or fines - at worst they might have lost their security clearances (and even there the law is a little murky). Read on...

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