Bush Failure To Disclose Waterboarding Appears To Violate Law

The furor over when and whether House Speaker Nancy Pelosi was briefed about the use of waterboarding has distracted attention from what is, perhaps, a far more problematic revelation regarding the Bush administration's interrogation of suspected terrorists.

According to the testimony of two high-ranking Democrats and recently declassified CIA and Justice Department documents, the Bush White House failed to disclose the use of waterboarding until roughly half a year after it was first deployed. Other writers -- notably Marcy Wheeler -- have picked up on this timeline. But it is worth restating and highlighting again because, if accurate, it appears to constitute a violation of law by the former White House.

As documented by the Congressional Research Service, the President is required to ensure "that the congressional intelligence committees are kept 'fully and currently informed' of U.S. intelligence activities, including any 'significant anticipated intelligence activity.'" The basis of this is the 1991 Intelligence Authorization Act, which places a statutory obligation on the President to not just keep relevant committees "fully and currently informed" but to disclose "any significant anticipated intelligence activity."

"The requirement to report significant anticipated activities means, in practice, that the committees should be advised of important new program initiatives and specific activities that have major foreign policy implications," reads language accompanying the FY 1991 Intelligence Authorization Act.

With these disclosure obligations in mind, it is worth revisiting what is known about who was briefed on the use of waterboarding and when.

According to Office of Legal Council memos and other sources, it is clear that the waterboarding of Abu Zubaydah began in August 2002.

Multiple records, meanwhile, show that Senate and House intelligence committee chairs and ranking members were briefed "on the interrogation" that fall. But the two Democrats who were briefed in 2002 -- Pelosi on September 4 and former Sen. Bob Graham on September 27 -- insist that they were not told waterboarding was in use. Indeed, the CIA disclosure about the time and content of the briefings describes the subject matter as "use of [Enhanced Interrogation Techniques] on Abu Zubaydah, background on authorities, and a description of the particular EITs that had been employed."

The first time waterboarding was mentioned in a congressional briefing, it seems, comes on February 4, 2003 when Sens. Pat Roberts and John Rockefeller were told "in considerable detail" how EITs were deployed including "how the water board was used."

A day later, Rep. Jane Harman and an aide to Pelosi were briefed on detainee interrogation programs and techniques. "It was also discussed that interrogation methods were similar to those taught/used in SERE training." The SERE training served as the basis for the waterboarding techniques used on terrorism suspects.

In short: six months appeared to pass between the waterboarding of Zubaydah and the moment when Democrats were briefed on the matter.

Bush administration officials say that they kept all members of Congress in the know. But their statements leave some wiggle room. In a Washington Post op-ed, former House intelligence committee chairman and CIA Director Porter Goss wrote that he was "briefed on the CIA's 'High Value Terrorist Program,'" in the fall of 2002 and was "slack-jawed to read that members claim to have not understood that the techniques on which they were briefed were to actually be employed." The phrase "were to actually be employed" noticeably differs from "were being employed."

So it seems plausible that, in the fall of 2002, members of Congress were either told only that the government was considering or planning the use of waterboarding or were kept in the dark entirely about the technique. Both Pelosi and Graham insist that latter is true. And if that is, in fact, the case, it would seem to place the Bush administration outside the law requiring disclosure of intelligence activities.

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