A Response to “Congress’s Torture Bubble”

          Vicki Divoll, former counsel to the CIA’s Counterterrorist Center and the Senate Select Committee on Intelligence, wrote an op-ed for the New York Times this week entitled “Congress’s Torture Bubble,” in which she discusses limitations on the interrogation briefings provided to Congress from September 2002 onward.  Although Divoll covers many of the legal issues addressed in my post earlier in the week, she presents the information in a way that is likely to confuse and mislead her readers. 

             Divoll’s main thesis seems to be that even if the “Gang of Four” (the Chairs and Ranking Members of the congressional intelligence committees) had objected to the interrogation program, “as a practical matter, there was very little, if anything, [they] could have done to affect the Bush administration’s decision on the enhanced interrogation techniques program.”  Her support for this thesis includes statements of the blindingly obvious (individual Members of Congress do not have the power to enact laws on their own) and descriptions of political reality (it was highly unlikely that there would have been political support in Congress for enacting legislation to stop the program).  But the thesis is predicated on the unstated, and unsupported, assumption that the only way Members of Congress could have ended, or even affected, the interrogation program was by passing a new law.  This is debatable, given the fact that the Bush administration ultimately ended the program without any new legislation requiring it to do so. 

            More important, however, is that Divoll’s thesis has nothing to do with her area of presumed expertise, namely the laws and regulations governing intelligence briefings to Congress.  The assumption of congressional impotence also camouflages the fact that she fails to adequately address the most important legal issue, i.e., the limits of what the “Gang of Four” were permitted to do with the information they received. 

             Divoll states that “[i]t is unlawful for the executive branch to limit notification, as it did here, to the Gang of Four.”  This assertion is based on 50 U.S.C. § 413b (c) (2), which, as noted in my earlier post, provides:If the President determines that it is essential to limit access to [a covert action] finding to meet extraordinary circumstances affecting vital interests of the United States, the finding may be reported to the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other member or members of the congressional leadership as may be included by the President.”   

            The permissive phrasing of this provision makes it difficult to say with certainty whether the President is required, as Divoll contends, to report covert actions to (at least) the “Gang of Eight,” rather than the Gang of Four.  Divoll’s reading of the provision seems reasonable.  However, the provision only applies to notifications about covert actions and, as Divoll acknowledges, the interrogation briefings may not have involved covert actions at all. 

            One should note here the peculiarity that Divoll herself is unsure whether the interrogation briefings were conducted pursuant to the statutory provision.  At the time of the first briefings, Divoll was counsel to SSCI.  One would think that, at a minimum, she would have insisted that the executive branch (a) identify the authority under which it was conducting any restricted briefings, and, (b) if proceeding under the statutory provision, brief the full Gang of Eight.  To the extent there is uncertainty about the authority underlying the briefings, Divoll is as much to blame as anyone. 

            In any event, as I argued in my prior post, it is most likely that the interrogation briefings were not conducted pursuant to the statutory provision, but pursuant to an informal practice that has developed over many years, in which the executive branch briefs only the Gang of Four about sensitive intelligence matters that do not involve covert actions.  Divoll acknowledges the practice, and the fact that it began before the Bush administration, but still asserts that “every member of the two committees should have been notified” about the interrogation programs. 

            But what does she mean by this?  Does she mean that the practice of restricted briefings is bad policy or actually illegal?  Did she object to this practice either when she advised the briefers (CTC) or the briefees (SSCI), and, if so, on what basis?  If the executive branch has been violating the law when it provided restricted briefings, haven’t the congressional intelligence committees been violating the law when they accepted them?   Divoll answers none of these questions. 

            A better view of the law, it seems to me, is that while the executive branch and congressional intelligence committees are free to agree to restricted briefings, there is no legal prohibition against the Chair and the Ranking Member sharing the information with other members of the committee.  Furthermore, as argued in my prior post, the rules of the House and the House Intelligence Committee at least allow, and under some circumstances may compel, such information sharing. 

            Divoll acknowledges that the Gang of Four could have shared the interrogation briefings with other members of the committees.  However, she presents this in passing, as if it is of no moment, and fails to explain why the Gang of Four would not have taken this step if they had objected to the interrogation program.  Instead, she leaves the impression that such action would be as radical as disclosing the information in open session on the floor, although the latter would be clear violation of congressional rules.  And while Divoll is correct that the Speech or Debate Clause would protect the Gang of Four from civil or criminal liability for things said on the floor of the House or Senate (or in committee), it would not protect them from punishment by Congress. 

            In short, Divoll’s op-ed, while it might mislead readers to believe that the Gang of Four had no viable options for responding to the interrogation briefings, does not in fact make such a case.  As discussed in my prior post, viable options did exist.  Whether these would have been successful in changing the interrogation program is, of course, a matter of speculation.  But the same could be said whenever a Member of Congress sets out to stop or change an executive branch policy.

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