The Bush Administration Did Not Give Legally-Required Prior Notification to Congress

We know, because Michael Hayden confirmed it the other day, that the torture program started as a covert operation (at 1:45).

By law, covert operations must be supported by a Presidential Finding (or Memorandum of Notification, which is reportedly what was used here) and require prior notification to Congress.

Congressional Notification

  •  The Requirement to Notify Congress

Consistent with section 501 of the National Security Act of 1947, as amended (50 U.S.C. 413), and unless the President otherwise directs in writing pursuant to his constitutional authorities and duties, Congress shall be notified on the President’s behalf of all special activities in accordance with this Directive.

  •  Contents of Notification

In all cases, notification to Congress as provided herein shall include a copy of the Finding or associated MON, if any, as signed by the President, and the statement described in section II.A.3 hereof.

  •  Prior Notification

Consistent with the expectation of prior notification to Congress, in all but extraordinary circumstances as specified herein, the DCI, or head of such other Executive department aqency, or entity authorized to conduct a special activity, shall notify Congress, on the President’s behalf, through the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives (hereinafter collectively referred to as the "Intelligence Committees"), prior to initiation of each special activity authorized by a Finding and associated MON, if any. In extraordinary circumstances affecting the vital interests of the United States, the DCI, or head of such other Executive department, agency, or entity authorized to conduct a special activity, shall notify Congress, on the President’s behalf, through the Majority and Minority Leaders of the Senate the Speaker and Minority Leader of the House of Representatives, and the Chaiman and Vice Chairman of the Senate Select Committee on Intelligence, and the Chairman and Ranking minority Member of the Permanent Select Committee on Intelligence of the House of Representatives, prior to initiation of a special activity authorized by a Finding and associated MON, if any.

  •  Extraordinary Circumstances

If the President determines that it is necessary, in order to meet rare, extraordinary circumstances, to delay notification until after the initiation of a special activity, the DCI, or head of such other Executive department, agency, or entity authorized to conduct a special activity, shall delay notification consistent with section 501(b) at the direction of the President. Unless the President otherwise directs, not later than two working days after the President signs a Finding or associated MON, if any, the Intelligence Comittees shall be notified in accordance with established procedures. In all such cases, notification shall include the reasons for not giving prior notice to the Intelligence Committees. In the event the President directs that notification to Congress be delayed beyond two working days after presidential authorization of a special activity as provided herein, the grounds for such delay shall be memorialized in writing and shall be re-evaluated by the NSPG not less frequently than every ten (10) days. [my emphasis]

We know from the SSCI Torture Narrative that this notification did not happen until after they were done waterboarding Abu Zubaydah. 

In the fall of 2002, after the use of interrogation techniques on Abu Zubaydah, CIA records indicate that the CIA briefed the Chairman and Vice Chairman of the Committee on the interrogation.

[snip]

Just as the statement does not purport to identify all Executive Branch meetings and documents on the CIA detention and interrogation program, the statement does not purport to describe either all Executive Branch communications or briefings to the Committee about, or the limitations on the Committee’s use of and access to information about, the CIA’s program. [my emphasis]

And when introducing that narrative, Jello Jay emphasized that "essential information" was withheld from Congress. (h/t Steve Aftergood)

But we now know that essential information was withheld from the Congress on many  matters and decisions were made in secret by senior Bush administration officials to obscure the complete picture.

Now, one thing the SSCI Torture Narrative makes clear is that the NSC discussions about this activity started in April 2002.  And Condi gave approval for the torture program (subject to legal approval) on July 17, 2002. We know from the SASC report that the Administration was considering reverse engineering the SERE techniques as early as December 2001. That would seem to exclude any claim of exigency that might excuse the Administration from notifying Congress for three months (or five months, or nine months).

But that’s not all. Jane Harman’s explicit, written inquiry–made in 2003–into whether Bush had personally authorized the torture techniques suggests she had not, after her first briefing on the torture program as the Ranking Member of the HPSCI, seen any presidential finding.

I would like to know what kind of policy review took place and what questions were examined.  In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States.  Have enhanced techniques been authorized and approved by the President? [my emphasis]

The report that George Tenet demanded and finally got a policy document supporting torture in 2003 supports the notion that Bush never issued a finding (or MON) laying out the torture techniques to be used until 2003. While Congress had been informed, it appears that it never got the formal documentation–with Bush’s signature–required by law until long after the torture program began. 

Now, Bush will undoubtedly claim that these were "extraordinary circumstances" that required this much secrecy. But there is one problem with that (and it may explain why Porter Goss is so panicky). The President has to, by law, memorialize why he’s not telling Congress about CIA’s activities.

In the event the President directs that notification to Congress be delayed beyond two working days after presidential authorization of a special activity as provided herein, the grounds for such delay shall be memorialized in writing and shall be re-evaluated by the NSPG not less frequently than every ten (10) days.

If this memorialization doesn’t exist, Bush still broke the law. 

This is Iran-Contra territory–the Administration conducting covert ops without proper notification to Congress. Now, given Sy Hersh’s report that Dick Cheney convened a "lessons learned" meeting at about the same time Bush issued the MON giving CIA the authority to interrogate on September 17, 2001, I’m sure PapaDick believes he’s found some way around the laws requiring Congressional authorization.

But from the record produced so far, it appears the Administration broke the law in an effort to avoid leaving a legal paper trail of their support for torture.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

87 replies
    • martha says:

      Actually, if an MSM outlet must take ew’s work and spread it to the world, I’d prefer it were McClatchy. At least they were consistent in their skeptical reporting about Iraq.

      • Waccamaw says:

        That is the only news group that I will read *and* trust…….as much as it is possible with anything coming out of the msm these days. Can’t remember the topic now but one of their pieces was in today’s local regional paper and it seemed to be comprehensive and truly *balanced*. I worry every time there’s something in e&p about their financial situation.

    • bobschacht says:

      I know I’m late to the party, but one way to bring it to the attention of the NYT is to use the Spotlight feature at the bottom of the diary (just above the comments).

      Use it often!

      Bob in HI

  1. JTMinIA says:

    If you read bits and pieces of the quoted statutes out-of-context and in a way designed to be as lenient as possible, then you can come up with the following:

    – only the chair and ranker of the intell comms need be told
    – they don’t have to be told in advance

    Now, I’m sure that the above was never intended, but you can find these allowances if you poke around and ignore adjacent sentences. And the previous Admin seemed to have a lot of lawyers that were good at finding ridiculous bits and pieces that – out of context, etc. – would seems to say they could do what they wanted.

    In short: this is not a slam dunk. Up is down and black is white.

    • emptywheel says:

      That’s why the last bit is so important.

      They can delay. But if they do, they had better have the paperwork explaining why they delayed:

      In all such cases, notification shall include the reasons for not giving prior notice to the Intelligence Committees. In the event the President directs that notification to Congress be delayed beyond two working days after presidential authorization of a special activity as provided herein, the grounds for such delay shall be memorialized in writing and shall be re-evaluated by the NSPG not less frequently than every ten (10) days

  2. JTMinIA says:

    So there you have another reason for Cheney to remain in DC and have his moles in place. If Cheney can burn papers in his office, he can write new ones, too.

    Or maybe he wasn’t invited to the Texas hoe-down because GWB was tired of signing back-dated memos.

  3. TheraP says:

    Dear Reader,

    If you have not sent in a donation to keep EW “busy” – doing what we love her to do – please go here. You can use a credit card, paypal, or (like me) send a check.

    It’s an addiction that will keep you free!

    • Palli says:

      TheraP, I live in Ohio and I just learned the following from http://www.iraq-war.ru/article/171551.

      Colonel (Retired) Larry James, Chief Psychologist at Guatanamo Bay in 2003 and 2007, as well as Abu Ghraib in 2004, has a new vocation: Dean of the School of Professional Psychology at Wright State University, Dayton, Ohio. Seems that James perhaps realized that some academicians might find it difficult to understand how his experiences at these illegal detention facilities qualified him for an academic deanship: he did not include his time at Guantanamo or Abu Ghraib on the CV he presented to Wright State.

      More true to fact is the bio that he presented in 2005 when James stated that he was assigned to Guantanamo Bay as Chief Psychologist for the Joint Intelligence Group in 2003 and Director, Behavioral Science Unit, Joint Interrogation and Debriefing Center at Abu Ghraib in 2004. We’re talking Intelligence and Interrogation at two of the most notorious sites of abuse and torture that this country has perpetrated in this century.

      Though he camouflaged his deployments at these sites on his most recent resume, conversely James has written an entire book about his time at Abu Ghraib: Fixing Hell: An Army Psychologist Confronts Abu Ghraib. Wright State beware: James’ grandiose claims border on the absurd.

      According to the publisher’s promotion of Fixing Hell:

      ” . . . the U.S. Army dispatched Colonel Larry James to Abu Ghraib with an overwhelming assignment: to dissect this catastrophe, fix it, and prevent it from being repeated . . . Colonel James’s expertise made him the ONE INDIVIDUAL CAPABLE of taking on this enormous task . . . readers will see the tightrope military personnel must walk while fighting in the still new battlefield of the war on terror, the challenge of serving
      as both a doctor/healer AND combatant soldier, and what can and must-be done to ensure that interrogations are safe, moral, and effective.” (emphasis added)

      Never mind that Rumsfeld and the Pentagon wasn’t calling Abu Ghraib a “catastrophe” at the time James was dispatched (at least not publicly). To remind some readers, this is the same Colonel Larry James who was Chief Psychologist of the Guantanamo Joint Intelligence Group JIG at the time that the Camp Delta Standard Operating Procedures (SOP) manual was put into place. This secretly-released SOP at Guantanamo was written specifically for the Joint Intelligence Group of which James was Chief Psychologist. The SOP makes it clear that the Joint Intelligence Group was specifically the military unit that decided how long isolation was used on each detainee to “enhance and exploit the disorientation and disorganization felt by a newly arrived detainee in the interrogation process,” along with other means of torture, abuse and violation of international law, such as hiding detainees from the International Red Cross.

      This is the same Colonel Larry James who had command responsibility for BSCT psychologists who were involved in SERE-based interrogation methods at Guantanamo during the period documented in a report from the Pentagon’s Office of Inspector General.

      What should a citizen from outside the profession do to voice objection to this person working at a state college in this capacity?

      • earlofhuntingdon says:

        Write James himself, and the president, the faculty dean and the board of regents, supervisors or trustees of Wright State. Ask for his resignation or a review of his credentials.

        Write the committee responsible for recommending funding for state schools in the state legislature in Columbus.

        If he practices, James has to be licensed by the state of Ohio. Write the APA and the state licensure board to ask for a review of his credentials.

        Dayton is a military friendly town and SW Ohio is fairly conservative. Be prepared to be ignored.

      • JTMinIA says:

        This will win me no points, but without further information I’d say that you are on the wrong side of the academic-freedom line.

        Yoo is a different matter. He teaches what he has proven himself incompetent upon. (Plus there’s the question of whether he broke one or more laws.)

        I don’t see this in what you’ve written about James.

        • Palli says:

          I’m an educator from an academic family and my father in the 50s would not sign the mandatory loyaty oaths. (I’ll FOIA his FBI files if there is a lull in the crucial Bush backlog of requests for important issues) I live outside Oberlin, Ohio. I don’t see this as an academic issue and that is why I will look forward to Thera’s thoughts also as well as thanks to EarlofH (thanks.)

          James was the lead pychologist (2003-2007) in a prison camp administering an illegal SERE program on POWs from undeclared wars; some of them were children.

        • cinnamonape says:

          My view on Yoo is that he violated the UC Regulations on “Treatment of Experimental Subjects [Prisoners]” while still associated (though on leave) at the University.

          If I took a leave of absence for research, did experimentation abroad on subjects without following those regulations, and returned and it was discovered…I’d be out on my ear, tenure or no.

          Why should Woo be allowed to give legal advice that’s contrary to such requirements and still retain his academic position? That advice enabled and encouraged illegal and unethical acts.

        • cinnamonape says:

          If he willfully concealed information about his academic background in his application that constitutes an act of deception. I’m not sure if this is, at all, an academic freedom question. As well, academic freedom issues are usually not immune from discussion in the cases of non-tenured faculty. Tenure protects the professor from such criticisms.

          Yoo has tenure, which makes his case especially difficult. His obtaining tenure itself seems questionable, as all sorts of rules and policies were broken in both retaining him as a faculty member at UC (allowing long extended sabbaticals before he obtained tenure), as well as giving him tenure without the necessary years of resident teaching at UC. In addition, he continually took additional sabbaticals…including after leaving public service…to teach in Holland, Italy, Britain and in Chicago. Now he’s taken another long term break in service?

        • TheraP says:

          If he’s been hired as a Dean, the “academic freedom” may not come into it at all, unless they gave him tenure along with the hire. If he’s only administration, he can be fired.

          I like the earlofhuntington’s ideas @63, but I agree that some of this may go nowhere, considering the conservative mentality in that part of the state. All avenues are worth a try. And never neglect what you may be able to accomplish simply by writing about this on various blogs and pestering legislators or administrators and so on.

      • TheraP says:

        Sorry for the late reply, Palli. I was out at a professional meeting for part of the day.

        In order to make a complaint to the Licensing Board, a complaint that would stick, you would need specific information about whether and to what degree he acted in ways that were unethical (if Ohio includes ethics as part of its licensing requirements) during his time at Guantanamo and Abu Graib. You need specifics. (Plus, was he licensed in Ohio at the time?) Sounds to me you’ve got “some specifics” or enough to go on to make a complaint. Licensing Boards, however, will sometimes take a complaint only from a citizen who suffered consequences due to malpractice or something along those lines.

        Three other things suggest themselves. You could, as a citizen who pays taxes to a state institution, question your taxes going for someone who may have participated in or directed (or authorized) torture of detainees in American custody. So you could question the institution employing such a person. And you could contact your state representative about this as well. Additionally, you could contact the local press to find out if they are interested in an article on this OR what about local political bloggers who might want to take up this cause and investigate it or just push it on their blogs?

        Seems to me you have a number of options here. Get specifics if you can. Or get others invested in finding out more and asking questions. Especially since he works at a public institution, you have more options in trying to bring this to the attention of people.

        Since you’re a “concerned citizen” – who’s been “very troubled by what you’re finding out about the role of psychologists in the torture of detainees in American custody.”

        See if you can find out if he’s tenured. If they simply hired him as an administrator, without giving tenure, there may be serious doubts you could raise, which might lead the institution to want to distance itself from burgeoning allegations and so on.

        The court of public opinion can be very powerful. And might get the ball rolling.

        Good luck here.

  4. phred says:

    And as you have pointed out over and over again, EVEN if we were to believe Goss’ phony “but but but Congress was briefed”, there is no provision for a Gang of 4 briefing, they are required to brief the Gang of 8.

    You have beautifully laid out that they have broken the law here. Goss in his own lamentable defense makes a claim that further emphasizes that they broke the law even when they try to pretend they didn’t.

      • phred says:

        Really? Being wrong is one of my specialties, so I’m happy to stand corrected on that point. Can you link to a Gang of 4 citation, because EW’s show Gang of 8 requirements.

        • JTMinIA says:

          Maybe I’m reading it incorrectly, but the section that EW’s put in bold under “Prior Notification” only mentions the Intell Comms (chairs and rankers), which I believe is a reference to the Gang of Four. Maybe there are two ways to get only four out of eight: Intell Comms only or leadership only … if my reading “Gang of Four” as the Intell Comms only is incorrect, then pleae tell me.

          • phred says:

            Under the Prior Notification section:

            In extraordinary circumstances affecting the vital interests of the United States, the DCI, or head of such other Executive department, agency, or entity authorized to conduct a special activity, shall notify Congress, on the President’s behalf, through the Majority and Minority Leaders of the Senate the Speaker and Minority Leader of the House of Representatives, and the Chaiman and Vice Chairman of the Senate Select Committee on Intelligence, and the Chairman and Ranking minority Member of the Permanent Select Committee on Intelligence of the House of Representatives, prior to initiation of a special activity authorized by a Finding and associated MON, if any.

            That’s the Gang of 8: leadership of the Senate and the House in bold, leaders of the committees in italics.

            • JTMinIA says:

              OK. But please note what my general point was. In some places, the statutes only require the Gang of Four (including the but that EW put in bold). In other places, they say you don’t have to notify immediately. Therefore, a dishonest reading of the entire package would seem to allow exactly what was done: only the Gang of Four and not before it was done.

              Yes, as EW pointed out very early, the Exec would need to be writing notes to him or herself saying “I hereby grant myself the right to not tell anybody what I’m doing for another ten days,” but we have no way of knowing right now if this was done. Plus, I, for one, would not put it above the previous Admin to write these notes after the fact and back-date them.

              Hence, my conclusion that this is not a slam dunk. Yes, of course it’s another example of the previous Admin being evil, but you don’t have them as trapped (legally) as you might think you do.

              • phred says:

                OK. But please note what my general point was. In some places, the statutes only require the Gang of Four (including the but that EW put in bold). In other places, they say you don’t have to notify immediately.

                I’m not being thick on purpose, if you see a spot where only notifying the Gang of 4 is permissible, please highlight it. I genuinely don’t see it. I’m not trying to be either difficult or contentious, I just don’t see where that occurs.

                In the bit I highlighted, the leadership of the Senate and House is listed with an “and” for the leadership of the committees.

                Ah wait, perhaps I see it now… under Extraordinary Circumstances it only mentions the Intell Committees, is that it? I had misread the “in accordance with established procedures” to imply as outlined in the previous section, but you’re right only the Intel Committees are mentioned in that latter section.

                Thanks for your patience — I really didn’t see it : )

                • JTMinIA says:

                  It the part in bold under Prior Notification. It says: “…shall notify Congress, on the President’s behalf, through the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives (hereinafter collectively referred to as the “Intelligence Committees”), prior to initiation of each special activity authorized by a Finding and associated MON…”

                  Yes, it does also say things, in other places, about notifying other people, and puts some conditions on what must be done if you don’t notify in advance, but that only comes up in a good faith reading.

                  My point is that, if you cherry pick sections and take them out of context, you can find allowances for exactly what was done. The only hole in my version is that it requires a series of “I hereby grant myself ten more days” memos, which we don’t know about either way.

                  • emptywheel says:

                    I agree with you there’s wiggle room in the Gang of Four/Gang of Eight rule.

                    BUt that still means they better have those every 10 day notes, or they’re on the hook for late notification in 2002.

                    If the Plame case is any example, they’re not going to claim they have those. They honsetly believed Bush did nothing wrong when he insta-declassified Plame’s ID, but they still wouldn’t reveal that Bush was in the loop.

                    • JTMinIA says:

                      Yep. My “escape route” depends entirely on the existence of a series of “ten-day extension” memos.

                      (Side note: thanks for letting me argue this point without calling me a troll [or worse]. My goal through-out was to keep “our side” from making overstatement errors.)

    • rkilowatt says:

      Perhaps protocol/rules on briefing Gang Of 8 are easily gamed by briefing 1 or 2 at a time and denying the right to discuss with other members…during or after said briefing. Being briefed as a group is utterly different than individually.

      Per Harmon’s letter to Muller “following up on the briefing we gave you and Congressman Goss on 5 February…. That’s like briefing Harmon alone bec Goss is already an agent of CIA, leaving Harmon easily intimidated and without credible witness of what she was told/observed or what she may have said or protested.

      The only recourse she had to protest being so victimized was to document it in her letter to Muller.

      Re-read her letter…she is asking Qs that would normally be asked in a briefing…Qs that ask for clarification so that elements of a briefing can merely be understood…like briefer’s use of wrong words or misunderstood words or phrases that she could not perhaps dare to ask while confronted alone.

      Her letter reads more like a plea from the wilderness.

  5. emptywheel says:

    Did you see Mary “BabyDick” Cheney’s comment in the second half of her interview with Norah? Norah asked if the President had approved of Cheney’s blabbing. BabyDick snapped back and said, “he doesn’t need permission.”

    • phred says:

      Wowser!!! Guess PapaDick does blab highly classified information not only to family members, but from that response (nope, I didn’t see it) he is free to blab to anyone.

      You know what irks me most about this (aside from the fact that he clearly broke the law on the handling of classified information), is that folks like Jello Jay make such a big fucking deal about how their hands are tied and they can’t talk to a soul and all they can do is lock letters of complaint in a safe. Jeebus, we don’t have a TWO-tiered system with respect to the law, it’s a THREE-tiered system. Cheney can treat classified information as ammunition to be used at will, while even other members of the political elite find themselves utterly constrained. Who the f*ck is supposed to investigate security breaches and where the hell have they been?!?!? Ok, I’m done ranting, but man oh man this fries me no end.

    • AZ Matt says:

      Must be the Fourth Branch BS kicking in again. I listened to about half of that interview but got tired of listening to her BS. Her father must have been proud.

    • LabDancer says:

      Maybe now I need some stronger coffee [maybe some of whatever you’ve been into this morning], but read having read through and searched NSDD # 286, i simply cannot find a single mention of the OVP; indeed, the only mention of the word “vice” refers to the minority party position on a Congress committee. If it is just isn’t there, then I wonder why PapaDick would ever have to seek a permission slip from the POTUS-of-the-day, to discuss a course-of-action program for which he neither sought nor obtained a permission slip in the first instance? If the only classification on something is PapaDick’s, then don’t the rules allow PapaDick to declassify?

  6. Aeon says:

    Covert action is quite distinct and different in nature from intelligence collection. If the interrogations were intended to get intelligence — they would not be subject to a finding.

    The only way that the torture program would be a covert action would be if the objective was not to obtain intelligence — for example to create exploitable propaganda to use against al Qaeda. An example of same was seen when a U.S. military PSYOP team burned some Taliban combat dead in view of their comrades while loadspeakering insults about Islam and the manliness of Islamist fighters. No finding was necessary there because it was a U.S. military op. If the CIA had done the same thing, a finding would have been necessary.

    The photos of the abuse at Abu Ghraib and elsewhere have been postulated as being part of a PSYOP — to be used to convince others to cooperate and for blackmail purposes.

    More likely is that Hayden — who famously denied that the Fourth Amendment requires probable cause — was talking out of his ass when he mentioned covert action here.

    Not ruling out the other interpretation, though.

  7. ApacheTrout says:

    When I read this:

    “Consistent with section 501 of the National Security Act of 1947, as amended (50 U.S.C. 413), and unless the President otherwise directs in writing pursuant to his constitutional authorities and duties, Congress shall be notified on the President’s behalf of all special activities in accordance with this Directive.” – emphasis mine

    I think of pixie dust, and wonder if there’s a secret presidential finding that has yet to be revealed, or if President Bush even bothered to write it down at all. Perhaps he just muttered it, liked the way it sounded, and then couldn’t be bothered to find a pencil.

  8. perris says:

    this is a non starter for me, doesn’t their authorization giving him “all power necessary” give him what he’s required by these statutes?

  9. SmileySam says:

    When did Bush write his Secret Executive Order on Security and has it been made public yet ? I’m wonder what he put in there for CYA value ?

    • perris says:

      cheney’s calling in all favors from everyone, he wants every single person on his torture tour including his daughter, there is no doubt in my mind his wife will be doing the torture tour next

      • BoxTurtle says:

        That’s the impression I’m getting. Dick is calling in every favor/threat he’s got because he senses personal legal danger. I’m waiting for his final defense: “I’m the vice-president, I have no real authority. I advised, but the president decided”.

        There’s a reason that Dick wasn’t at the BushCo reunion, and it ain’t a prior engagement.

        Boxturtle (The idea of Bush/Dick turning on each other in public is very pleasing)

  10. pdaly says:

    I think a black cloud is forming over a nondescript GSA office building in a strip mall in McLean, VA.

    • emptywheel says:

      Forming?? You didn’t see all the meterologists wondering how a carefully formed cloud moved from the EOB to McLean three months ago and just stayed there?

  11. radiofreewill says:

    Imvho, this all goes back to the aftermath of 911, when Bush boot-strapped himself as the Unitary Executive – the Un-limited President and Commander-in-Chief – Above the Law.

    The actions of the Bush Administration vis-a-vis the 1947 National Security Act described in this article are a Perfect Example of the lattitude Bush and Cheney gave themselves with that Power – Our Weakling Congress was supposed to be Nothing More than an After-the-Fact Rubber-Stamp Lackey for Bush’s whims, and the Courts were supposed to ’stay out of the way.’

    Also, as I understand it, the 1947 National Security Act reporting requirement would apply to Both Torture And Wire-Tapping, but please correct me if I’m wrong on that.

    Somewhere, there is an OLC Memo documenting Bush’s Claim to be the Unitary Executive, in which he Secretly Covered All of His Ideologically Motivated Actions as Military Operations, including on the ‘battlefield’ of Our United States, itself, with No Respect for Congress and the Judiciary other than to do his bidding – even if it meant Duping them into Complicity, and using it against them to keep them leveraged and quiet.

    With the release of enough information, imvho, it will become Clear for All to See that Bush Hid His Torture, His Warrantless Domestic Wire-Tapping, His Firing the USAs for Disloyalty, His Outing of Valerie Plame Wilson, and All the Myriad Grievous Wrongs of his 8 years Behind the Claim of Military Secrecy in the ‘War on Ideologies Other Than His Own.’

    Unless Bush is exposed, prosecuted and punished for his Crimes, All of US should be wary that Tyranny-Through-Secrecy might come back to Haunt US again in the future.

    • BayStateLibrul says:

      The Artful Dodger.
      Bush may have pardoned himself before leaving office, and it’s sitting on the on deck circle….

    • pdaly says:

      from wikipedia entry on Elizabeth Cheney:

      Elizabeth graduated from McLean High School in 1984. She received her bachelor’s degree from Colorado College where she wrote her senior thesis, “The Evolution of Presidential War Powers,” in 1988. She received her Juris Doctor (J.D.) degree from the University of Chicago Law School in 1996.

      Wonder who in her family might have given her thesis ideas?

      And her thesis title immediately brings to mind John Yoo’s obsessions over ‘presidential power.’ I think he wrote his college thesis on the same topic. So many like minded individuals in the Republic. Wonder how they communicated before the advent of email and world wide web.

      • phred says:

        Wonder who in her family might have given her thesis ideas?

        What do you bet Addington wrote it for her and she just put her name on it ; )

        • Rayne says:

          You mean like the talking points MiniCheney used during the MSNBC interview?

          Really, given her role in the administration, why is she talking AT ALL about torture — unless somebody gave her a briefing, talking points AND in doing so, access to SCI material?

          • phred says:

            On this particular occasion I was invoking the notion that many here have that Addington was the one who either wrote or told Yoo/Bybee what to write. So I was just teasing that PapaDick had Addlepated write MiniCheney’s thecal matter (as the hubby likes to call it ; )

            Your second point is the one that got me in a tailspin as soon as EW posted the interview. Classified information is disseminated on a need to know basis only to those with proper clearances. Even if you have the right level of clearance, if you do not have a need to know a given piece of information, it is not supposed to be revealed to you.

            It seems clear to me, PapaDick has been shootin’ his mouth off at the dinner table, and undoubtedly elsewhere, disseminating information he may not legally reveal. That fact that he is trotting out his daughters before TV cameras is yet another example where PapaDick publicly flouts the law. As I asked earlier in the thread, where the heck are the folks who are supposed to investigate such unlawful releases of classified info? And if they are so poor at doing their job, then why the hell did Jello Jay claim he had no recourse but to tuck his sternly worded letter in a safe?

            Absolutely everything about those interviews is rotten to the core. And somebody needs to file a complaint with someone pronto.

      • rosalind says:

        the world is not yet safe from the searing intellect of john yoo. topic of the book he’s currently writing? the history of presidential powers.

        link

        in the same q&a he provides this gem on the balance of powers:

        Q. How interesting was it to practice law in all three branches of government?

        A. They each have different perspectives on what the law is, and they also have different institutional interests. I think in war time or an attack like 9/11, the executive branch often has to respond first. It’s designed by the Constitution to respond immediately. Congress always wants to participate, and it wants to watch what the executive branch is doing and criticize when (Congress) thinks it’s getting it wrong. It likes to take responsibility when things go well. The judiciary also has its own set of interests, because it wants to be careful about not becoming too political.

    • RevBev says:

      I completely agree…it should be no shock at all what we are seeing because the boy Idiot King W has never seen a law that he concurs would apply to himself.

    • spurious says:

      Unless Bush is exposed, prosecuted and punished for his Crimes, All of US should be wary that Tyranny-Through-Secrecy might come back to Haunt US again in the future.

      Amen.

    • perris says:

      Unless Bush is exposed, prosecuted and punished for his Crimes, All of US should be wary that Tyranny-Through-Secrecy might come back to Haunt US again in the future.

      might?

      I saw the word “might” in there, let me edit;

      Unless Bush is exposed, prosecuted and punished for his Crimes, All of US should be wary that Tyranny-Through-Secrecy might WILL come back to Haunt US again in the future.

      there

  12. perris says:

    anyone read this from john over at c and elle?

    I’m hearing serious rumors that the newly disgraced Judge Jay ByBee may not have actually written the CIA memos under his byline, but acted like a stenographer on the torture issue while he was John Yoo’s boss. I’m in the process of investigating these allegations.

    he has also expressed regret over those memos to his friends

    this is getting rich

    think progress;

    I’ve heard him express regret at the contents of the memo,” said a fellow legal scholar and longtime friend, who spoke on the condition of anonymity while offering remarks that might appear as “piling on.” “I’ve heard him express regret that the memo was misused. I’ve heard him express regret at the lack of context — of the enormous pressure and the enormous time pressure that he was under. And anyone would have regrets simply because of the notoriety.”

    • PJEvans says:

      If he really wants to express his regrets over the memos he may or may not have written, I’d suggest he resign from the bench first. A full written statement would be good, released to the Senate, the DOJ, every newspaper he can think of, and possibly also to the Vatican (CYA-future).

  13. WilliamOckham says:

    ew,

    As you pointed out a week ago (quoting an NYT article from 2006), the MON was done on 9/17/2001:

    According to accounts by three former intelligence officials, the C.I.A. understood that the legal foundation for its role had been spelled out in a sweeping classified directive signed by Mr. Bush on Sept. 17, 2001. The directive, known as a memorandum of notification, authorized the C.I.A. for the first time to capture, detain and interrogate terrorism suspects, providing the foundation for what became its secret prison system.

    • emptywheel says:

      Right.

      But that MON didn’t talk about interrogation techniques, so they would have had to do another MON to authorize torture.

      I’m convinced this WaPo article was trying to get at precisely this issue. It says:

      The CIA’s anxiety was partly fueled by the lack of explicit presidential authorization for the interrogation program. A secret White House “memorandum of notification” signed by Bush on Sept. 15, 2001, gave the agency broad authority to wage war against al-Qaeda, including killing and capturing its members. But it did not spell out how captives should be handled during interrogation.

      And it’s in that context that CIA asks for the 2003 and 2004 memos giving Presidential approval.

      The Bush administration issued a pair of secret memos to the CIA in 2003 and 2004 that explicitly endorsed the agency’s use of interrogation techniques such as waterboarding against al-Qaeda suspects — documents prompted by worries among intelligence officials about a possible backlash if details of the program became public

      Which makes sense. If Harman was opposed to the program, and asking for some kind of proof Bush had signed off on the memo in January 2003, I would imagine that Tenet would start to get squirmy.

  14. Rayne says:

    EW — you might want to take a break and read Doug Valentine’s Nov. 2001 series at Counterpunch on the Phoenix Program.

    There’s a key bit about presidential findings:

    Bane’s Office of Terrorism handled each incident on a case-by-case basis, depending on whether or not it was defined as “international terrorism,” meaning the terrorists crossed borders or had foreign support, or “domestic terrorism,” in which case the terrorists were operating within their own country. If the incident related to domestic terrorism, the CIA’s Office of Terrorism could not get involved, unless specifically authorized through a presidential executive order called a “finding.”

    The need for a “finding” was a nagging bureaucratic stumbling block, and as an example, Bane cites the time Colombia’s M19 terror group took 20 foreign diplomats, including the American ambassador, hostage at a party at the Dominican Embassy. Thinking the trans-national nature of the incident qualified it as “international terror,” Bane, with the approval of the State Department’s terrorism unit, launched a Delta operation in conjunction with the CIA’s new SOD chief, Rudy Enders. Bane provided intelligence on the terrorists while Enders and his assistant, Burr Smith, provided Delta with the equipment it needed to stage a rescue operation. Meanwhile the Crisis Management Team assembled in Florida, and prepared to jump into Colombia.

    May explain all the country and plane hopping as well as the contractors, since nature of threat can be manipulated by location and by customer/client relationships.

    There’s a LOT more in Valentine’s series which makes it sound more like the appropriate model for post-9/11 detentions, versus School of the Americas — at least what I’ve read so far.

    That Valentine wrote this in 2001 and that Ledeen figures strongly is reason enough to read it, even though it does come off a bit whacked.

  15. Waccamaw says:

    More than a third of the way to $150,000. and Dog help the rethugs and msm when we unleash the brilliant Ms. ew on them full-time! Boo-yah!!!!!!

  16. JTMinIA says:

    A thought just hit me (and it hurt a little, so please be nice).

    Another useful aspect to having some evidence that Harman was compromised is that it could be used, later, as a justification for NOT following the rules about prior (or after-the-fact) notification.

    “We couldn’t tell Congress, Your Honor, because it would immediately be leaked to spies.”

    • Rayne says:

      Oh yeah…and at the same time, they were spying on Congress, so they’re caught in a Catch-22.

      Where’s the recordings of Harman? would they reveal a negative in this case, proving she received inadequate notification?

  17. earlofhuntingdon says:

    unless the President otherwise directs in writing pursuant to his constitutional authorities and duties, Congress shall be notified on the President’s behalf of all special activities in accordance with this Directive.

    What are the odds that David Addington-written memos delivered by OLC attorneys claimed that the president had “inherent” constitutional authority to withhold such information from Congress?

    Shakespeare was wrong: completing a rebellion does not require that revolutionaries “kill all the lawyers”, just those not loyal to the new sovereign. Even then, shutting them up or shutting them out is just as good.

  18. Rayne says:

    Semi-OT — still working on the conversion/translation of SoA manuals.

    Just ran across this sage piece of advise to interrogadores:

    a. Rapidez: El tiempo es el enemigo mas grande que tiene el interrogador. Durante situaciones tácticas, el interrogador tiene que trabajar con rapidez para poder rendir información de inteligencia. También preciso actuar con rapidez cuando nos enfrentamos con un gran numero de PGE’s. Nunca se debe sacrificar la exactitud por la rapidez.

    En Englese:

    a. Speed: Time is the interogator’s biggest enemy. In tactical situations, the interogator has to work fast in order to yield intelligence information. We also have to act quickly when faced with a large number of PGE’s [Prisoners of War]. We must never sacrifice accuracy for speed.

    Um, yeah. That’s why waterboarding 183 times in one month was “necessary”.

    Too bad they didn’t grok the last sentence, assuming they were using similar training manuals.

  19. Palli says:

    TheraP-Larry James was hired in Sept of last year…I know longer live in that part of the state.
    Despite the fact that this state school is near Wright Pat Air Force Base; it does not principly serve the military, of course.

  20. Rayne says:

    Semi-OT — Well, that’s interesting. The Spanish-language manual for School of the Americas does include this text:

    EL INTERROGADOR NO PUEDE MALTRATAR FÍSICAMENTE A NINGÚN PRISIONERO. HAY QUE SEGUIR AL PIE DE LA LETRA LOS ACUERDOS DE GINEBRA.

    In BOLD font, no less. Skeptical this was the only text used, or that this was the one used since it could have been gamed, but this one available through the National Archives does include this text.

    En Ingles:

    The interogator CAN NOT physically abuse PRISONER. We must continue to the letter of the Geneva Accords.

      • Rayne says:

        Given the other repeated references I’ve seen so far to el Convenio de Ginebra, it certainly looks more like Phoenix Program than SoA platform for SOP.

      • MarkH says:

        Of course, the American public, or their elected representatives, never gave the administration authorization to ‘take the gloves off’. They claim ‘everything changed’, but that’s simply not true. They assert it. They lie.

  21. freepatriot says:

    off-topic troll monitoring comment

    if he keeps up with the ignorance and condescension, I’m thinkin of claiming cregan as my own little toy

    any objections

    I’m pretty sure he tried to insult me, so he’s got that issue to straighten out, no matter what

  22. bmaz says:

    From NSDD 286:

    Consistent with the expectation of prior notification to Congress, in all but extraordinary circumstances as specified herein, the DCI, or head of such other Executive department aqency, or entity authorized to conduct a special activity, shall notify Congress, on the President’s behalf, through the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives (hereinafter collectively referred to as the “Intelligence Committees”), prior to initiation of each special activity authorized by a Finding and associated MON, if any. In extraordinary circumstances affecting the vital interests of the United States, the DCI, or head of such other Executive department, agency, or entity authorized to conduct a special activity, shall notify Congress, on the President’s behalf, through the Majority and Minority Leaders of the Senate the Speaker and Minority Leader of the House of Representatives, and the Chaiman and Vice Chairman of the Senate Select Committee on Intelligence, and the Chairman and Ranking minority Member of the Permanent Select Committee on Intelligence of the House of Representatives, prior to initiation of a special activity authorized by a Finding and associated MON, if any.

    Curiously drafted when you really look at it. The threshold trigger is effectively “a Finding and associated MON”, that would be consistent with the proposition that both a finding and a MON are necessary to have a full predicate. But then, each time, the dangling clause “if any” is stuck on the end of the pertinent sentence. WTF?

  23. cinnamonape says:

    One problem…almost everything can be justified as “intelligence gathering”. That’s because all covert actions are also used to obtain information on an enemies response to that covert action. Every covert action is assessed for success and flaws.

    Take the body-burning you mention. That could be justified as “intelligence gathering” simply by saying “we assessed the impact on the enemy”. An assassination team would obviously be debriefed and asked about particular weak or strong points in security by the opponent.

    Indeed “intelligence gathering” IS, if it requires human resources in enemy controlled territory, by its nature a “Covert operation”. It can also be a domestic “black bag” operation that must be done without detection. For example, the NSA domestic surveillance would be a covert operation. So was the Watergate and Ellsberg break-ins.

    The general distinction in the CIA is between “Operations” and “Intelligence Analyisis”. Operations that must be kept secret are covert…as opposed to overt (”open”).

  24. tjbs says:

    I’m impressed do you ever take a brake. Spring is blooming.
    Thanks for all you do, as a lady of the lake. Bless.

  25. wavpeac says:

    I don’t like Iran/contra territory. God I am sick of this. It’s good we have some evidence pres broke the law, but bad that it hangs on a legal technicality that has most certainly been prepared for.

  26. susiedow says:

    If I’m following correctly, the secret memo coincides with the September 18, 2001 AUMF which Gonzales later argues authorized the warrantless wiretaps. Why wouldn’t the White House expect to use the same rationale for authorizing torture?

  27. Mary says:

    EW – I agree with you that the notification was required by law, but I don’t think your link is the proper support. For the proposition that the notification is required by law and your quotes, you are linking back to an NSDD – a national sec directive. That’s an Exec branch directive to itself, not the applicable law.

    The applicable law is the National Security Act. The Directive is enacted to pay lip service to tracking the requirements in that Act.

    Sec 501 of the Act provides, “(a)(1) The President shall ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity as required by this title” and “(b) The President shall ensure that any illegal intelligence activity is reported promptly to the congressional intelligence committees, as well as any corrective action that has been taken or is planned in connection with such illegal activity.”

    As an aside, this would have required that things like the killings of Jamadi and the nameless “young” detainee frozen to death in Nov 2002 and the kidnapping of el-Masri, etc. would have been required to be briefed to the full committees, even under the OLC opinions and their twisted language on illegality in various settings. It would also have required that, upon Diggs-Taylor’s determination of the illegality of the US Eavesdroppoing portion of “the prorgram” that there would have been full briefings.

    It also is an area of huge problems that Congress needs to address, bc if the President only has to advise of illegality as determined by the President, or the President’s tame AG or corrupt OLC, then that’s not worth much.

    Then 501 goes on to provide,

    e) Nothing in this Act shall be construed as authority to withhold information from the congressional intelligence committees on the grounds that providing the information to the congressional intelligence committees would constitute the unauthorized disclosure of classified information or information relating to intelligence sources and methods.

    (f) As used in this section, the term “intelligence activities” includes covert actions as defined in section 503(e), and includes financial intelligence activities.”

    Moving on to the covert activities at issue, section 503 lays out the requirements for covert actions (as 502 does for actions not within the statutory definition of “covert” (which IIRC was something that Harman brought up in connection with the program and with pushing for full briefings to the full committees)

    Working through 503 gets you to pretty much the same place that you got when you worked through the directive EW. The President isn’t allowed to authorize a covert action unless “the President determines such an action is necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States, which determination shall be set forth in a finding that shall meet each of the following conditions … “

    So there has to be that finding, somewhere. 503 requires that findings be in writing, unless there was an emergency requiring action before they could be reduced to writing, but in that case they still have to be promptly reducted to writing. Other than when there was an emergency verbal finding that was then promptly reduced to writing, no finding can authorize prior acts.

    Contractors who are directed to participate in covert activities are required to be subject to the rules and regulations of either the CIA or the other applicable agency directing the covert action (so, for example, if telecoms were acting as contractors for NSA this would require that they be boun by NSA rules and regs – nice to see the contract where that happened, eh- as well as psydist’s on contract to CIA being subject to CIA rules)

    Findings may not authorize any actions that would violate the Constitution or statutes (how they expect to enforce that is pretty up in the air when the President is allowed to say that it isn’t violation of the Constitution or statute as long as, for examples, crimes of assault and torture murder were ‘good faith’ crimes of assault and torture murder.

    Under 503(b)1 the DCI is tasked with keeping the committee informed, including about “significant failures” (al-Libi comes to mind, el-Masri being the “wrong guy” etc.) The DCI (which is a term that needs updating) is only required to turn over info requested by the committees, and that needs fixing – to require turnover to smaller groups briefed as well.

    While the President is supposed to get info to the full committees before covert actions are started 503(c)1, he gets an out for “extraordinary circumstances affecting vital interests of the United States” and in those situations the statute states that the “finding may be reported to the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other member or members of the congressional leadership as may be included by the President” You can make the “may” v. shall argument there, but you still end up at the same place that you do in the post and at comment 3 –

    the statute still requires that the President provide a

    statement of the reasons for not giving prior notice

    when the info is provided to the committees.

    If the intel committee chair and ranking member are briefed (whether to the exclusion of others or as a part of a committee briefing) “a copy of the finding, signed by the President, shall be provided to the chairman of each congressional intelligence committee.

    To my knowledge, no one has been asking Rockefeller, Harman, Pelosi, etc. whether or not they were given Presidential findings on torture programs whey they were briefed as required by statute.

    Not only that, but when the intel committees are getting the briefing to the exclusion of others on the committee, they are supposed to get not only the Presidential finding, but also the President’s statement of WHY they are the only ones getting the briefing.

    When access to a finding is limited to the Members of Congress specified in paragraph (2), a statement of the reasons for limiting such access shall also be provided

    503(c)4.

    So while the statute gets you to many of the same places as the directive, it is the statute that is the legal requirement on the Executive, not the NSDD which is a requirement within the Exec.

    So based on the statute, there was probably never any covert exemption allowance for the President to refuse to brief the full intel committees on interception of US citizen in the US communications, as that is not a covert activity. OTOH, impeachment was off the table for this significant violation of th NSA.

    Based on the statute, when Pelosi, Rockefeller, Goss et al did get their briefings as chairs and ranking members of the intel committees, they should have been provided with a Presidential finding if covert action was going to be or was already taking place to “interrogate” the “detainees” in “black sites” They should also have been given the Presidential statement of the “extraordinary circumstances affecting vital interests of the United States” which was his grounds for failing to brief the full committees on the torture programs that were being used not only against KSM, but to collect “mosaic” background information from people including wholly innocent GITMO detainees.

    So far, I haven’t seen any of these guys talking about the briefings mentioning whether they did or did not recieve the findings and statements with those briefings. I’d say those might go a long way to answering the issue of whether it should or should not have been assumed that a) the torture programs were going to take place or already in possession, and b) whether these Intel chairs and ranking members were bothering to even request from the briefers the statutorily required documentation.

    all fwiw

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