Blowing the Whistle on Torture

Ian over at The Agonist follows Michael Froomkin in berating lawmakers who knew of water-boarding as early as 2002 for failing to raise their concerns on the floor of the House and Senate. Froomkin makes an interesting point that:

"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... 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)."

To support his argument, Froomkin excerpts Article 1 of the US Constitution which reads:

"The Senators and Representatives... shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."

Note, however, the exemption for acts of “treason,” defined in Article 3 of the US Constitution:

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

Who supposes a government who can claim water-boarding is not torture wouldn’t happily call such whistle-blowing “aiding and comforting the enemy” and thus the construct the whistleblowers as traitors?

I endorse the idea that any right-minded congressperson should have gladly gone to prison if necessary to blow the whistle on these practices. But let’s not “misunderestimate” the gravity of the personal choice they may have faced.