House Speaker Nancy Pelosi's declaration that the CIA misled her on the use of waterboarding on suspected-terrorist detainees has sparked a wave of debate in political and legal circles as to whether or not laws may have been broken.
At issue are two distinct threads of criminal and constitutional law.
Pelosi has alleged that the CIA essentially lied to her by insisting that waterboarding was not in use in the fall of 2002. Subsequent evidence has shown it was employed that August. If that is the case, lawyers say, the Bush administration may have violated criminal statute 18USC1001, which makes it illegal to give false statements to Congress.
According to the statute, if a member of the "executive, legislative, or judicial branch" of the government "knowingly and willfully"...
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
... they "shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both."
Whether this definition qualifies in Pelosi's case is debatable. One complication is the fact that the allegedly misleading briefing was not conducted under oath or during congressional inquiry.
"There is a federal statute criminalizing false testimony to congress," said Michael Dorf, who cited the Iran-Contra testimony of Oliver North and the steroid testimony of Roger Clemens as two examples. "But the people who talked to Speaker Pelosi may not have been under oath."
Added Bruce Fein, the associate deputy attorney general during the Reagan administration and prominent civil libertarian: "Typically if you make a false statement with an attempt to mislead or obstruct the agenda of Congress than yes, that is a crime. Usually, however, it is a crime when it is to obstruct a congressional inquiry... That said, I have no doubt that Congress could enact a law saying that the executive cannot provide misleading information during a briefing."
Jonathan Turley, a professor of law at George Washington University, said that there were "a variety of possible charges that can be brought here," though he noted that most of the time "misleading statements are treated with legislative response" -- such as budget cuts or codifying new standards for briefings. But, from a political standpoint, he, like Fein, insisted that any case arguing that laws were broken would be muddled by the fact that Pelosi is not currently calling for a special prosecutor to investigate the Bush administration's use of waterboarding.
"In this case Pelosi is charging that she was knowingly misled about a war crime," he said. "Now the problem with her latest explanation is that it is hard to express outrage over false statements regarding war crimes when you have personally blocked the investigations of the war crimes."
There is, however, a second legal argument that could come into play if it is proven that Pelosi was kept in the dark about the use of waterboarding in the fall of 2002. Under the National Security Act of 1947 and, likewise, the 1991 Intelligence Authorization Act, the Executive Branch 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."
A former Bush administration official familiar with CIA briefings said that it was "inconceivable that [the agency] would have briefed the congressional leaders on the program and implied that the program had not yet begun." But former Senate Intelligence Chairman Bob Graham told the Huffington Post that he too was not informed of waterboarding.
"[The CIA] was under a legal obligation to ensure that the intelligence committees were kept fully and currently informed of the intelligence activities of the United States, including anticipated intelligence acts," he added. "They did not brief the full intelligence committees, not only on extensive interrogations but also on the detainee program or on the warrantless wiretapping program."