Update: All the same, the value of Pelosi's actions now should not be denied -- she makes further action, at least some sort of truth commission, that much more likely. It keeps things active, so we learn more and more, including how torture was suggested (used?) to confirm Iraq untruths. Meanwhile, John Dean has a good discussion of some of the reasons behind Obama's one step forward, one step back approach that bothers many, including me.
Rather, his insistence is that the Speech or Debate Clause, at the very least, protects him from criminal or civil liability and from questioning elsewhere than in the Senate, with respect to the events occurring at the subcommittee hearing at which the Pentagon Papers were introduced into the public record. To us this claim is incontrovertible. The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process. We have no doubt that Senator Gravel may not be made to answer either in terms of questions or in terms of defending himself from prosecution -- for the events that occurred at the subcommittee meeting. Our decision is made easier by the fact that the United States appears to have abandoned whatever position it took to the contrary in the lower court.
-- Gravel v. U.S.
While we get a kabuki dance involving what Pelosi was told and how was she told it involving various techniques that reasonable minds describe as torture, "Vicki Divoll, a former deputy counsel to the C.I.A. Counterterrorist Center, [and] the general counsel of the Senate Intelligence Committee from 2001 to 2003" has an op-ed today that gets to the nub of the matter. Notifying a certain "Gang of 4" or "Gang of 8" of Congress alone was simply a perversion not only of true legislative oversight, but statutory law.
Yet another example where executive power and secrecy was stretched, surely partially with the aid and comfort of Congress, partially to avoid embarrassment or a true airing of controversial policy choices. See also, The Dark Side. The op-ed also hits upon a point that I simply never, I mean never, see mentioned, even on sympathetic moderate/liberal blogs or news programs such as Rachel Maddow:
The speech and debate clause of the Constitution shields senators and representatives from civil and criminal liability in the performance of their legislative duties. It would have protected those members if they had decided to march down to the House or Senate floor and denounce the Bush administration for engaging in torture, though that approach not only could have harmed C.I.A. operations, but also surely would have been political suicide.
I repeatedly have heard Pelosi imply that she simply could not talk about what was discussed as if it was some clear legal barrier. She and others have complained that this led them to be in effect blind, since they could not get advice from legal and policy minds. But, this is bullshit. BULLSHIT. Sen. Gravel put the Pentagon Papers, classified, into the Congressional Record. Is it "political suicide" now to provide a full account? If C.I.A. operations are illegal, the fact they could be "harmed" (obviously debatable) is not enough. We are talking torture here.
Why is a provision of the Constitution repeatedly ignored? Now, maybe, the Pentagon Papers aside, the provision is not deemed as "absolute" as it seems. But, it still should be referenced by members of Congress and the media more than it is. Then again, more on the targeted out homosexual translator [eloquent open letter] or blocking Dawn Johnsen / torture pictures because they might be embarrassing [As usual, Glen Greenwald is a good place as any to read about this] suggests the truth is sometimes just to hard for many to handle.
Anyway, Ms Divoll hits it home as to the need for proper congressional oversight, especially since this can very well include the system we have now -- if properly handled. OTOH, if you expect legislation to overturn ever extending executive overreaching, especially with a Democrat in the White House, good luck on that.