So Nancy Pelosi says she couldn't have revealed the classified information she was told about Bush administration torture even if she had wanted to. For that matter she says she still can't. And the meme echos across DU. Over and over posters insist that secrecy laws stood in the way of our noble office holders revealing what they were allegedly told about Bush Administration crimes. Alas, if only they could have spoken out...

Well, they could have. Here's the facts:

Pelosi and her defenders have been frequently citing 18 USC 798 regarding penalties for the disclosure of classified information. They are correct to do so. But there is more to secrecy law than just 18 USC 798, beginning with the the definition of "classified information."

"Classified information" is legally defined as "Any information or material, regardless of its physical form or characteristics, that is owned by the United States Government, and determined pursuant to Executive Order 12356, April 2, 1982 or prior orders to require protection against unauthorized disclosure, and is so designated."

So lets look at Executive Order 12356, the foundational legal document of our current system of security classification. Here's the relevant passage:



Bottom line: information that has been classified in order to conceal violations of law has been improperly and illegally classified. This is clearly the case regarding torture (not to mention FISA violations and a myriad of other official crimes).

Anyone - from Congress members to members of the press - who publicly reveals improperly classified information has available to them the defense that the information in question was not in fact "legally classified." Of course the revealer of the information is taking the chance that - if prosecuted - a judge will not agree with their personal assessment that the classified activities were criminal.

All of this is well established. The "embarrassment" language of Exec Order 12356 1.6 (a) was in fact used by the New York Times to successfully defend themselves against charges of violating secrecy laws with the publication of the Pentagon Papers. And of course none of this even touches on the criminal immunity Congress members enjoy for statements made on the floor of the House or Senate.

Sooo... all that would have been required of Pelosi, Rockefeller, Harmon or any other Congress member would have been to make the individual self-evident and perfectly reasonable determination that what they were briefed about violated the law. They could then have revealed that information and fought to oppose the criminal acts.

If the Bush administration were really foolish enough to have opened the can of worms involved in charging a member of Congress with violating 18 USC 798 they would eventually have found themselves in in secret court proceedings defending the legality of the underlying torture crimes. Such an action on their part would have been highly unlikely for both legal and political reasons.

Some in our Party would like to put their heads in the sand and insist that ALL culpability for torture and other crimes rests with the previous Republican administration. Such an unwillingness to take responsibility for the Democratic share of blame is not only the height of hypocrisy but also weakens our Party and helps ensure that future governmental lawbreakers will avoid accountability.

Yes. Lets point the primary finger of responsibility for Bush era abuses first and foremost at the criminal Republican administration that directly conceived and executed the crimes. By all means hold them accountable first and foremost. But lets not be afraid to clean our own house as needed. A Democratic leadership committed to accountability and aggressive oversight could have certainly put much more of a crimp in Bush lawbreaking if only a serious effort had been made.

Certain Democrats could have legally spoken out. They CHOSE not to. Lets move beyond the tortured rationalizations (pun intended) and admit what we all know: Our leaders lacked the moral and political courage to stand against the Bush administration and its crimes. They feared being labeled un-American or soft on terror. They feared the wrath of the media and their political enemies and they feared losing their own positions of power. They behaved like gutless sniveling cowards when we needed them the most. For the sake of our Party we shouldn't let that pass.

I understand this process of self examination can be politically difficult. The Republicans and the direct perpetrators of Bush crimes predictably use any discussion of Democratic complicity to divert attention from their own even greater share of blame. In fact they almost certainly briefed Democrats about their crimes to lay the groundwork for this exact strategy. Still, such is politics and these attempts at diversion can be easily deflected. They certainly don't excuse our own refusal to pursue all those complicit - even our own.