Did Somebody Improperly Make Torture a Special Access Program?

I wanted to take one last look at the Panetta declaration, this time with respect to what it says about classifying torture (also see Mary’s long comment and pmorlan’s comment on this topic).

NSC Officials Made This a Special Access Program, Not Director of CIA

Panetta tells a funny story about how (but not when) the torture program became a special access program.

Section 6.1(kk) of the Executive Order defines a "special access program" as "a program established for a special class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level." Section 4.5 of the Order specifies the U.S. Government officials who may create a special access program. This section further provides that for special access programs pertaining to intelligence activities (including special activities, but not including military operations, strategic, and tactical programs), or intelligence sources or methods, this function shall be exercised by the Director of the CIA.


Officials at the National Security Council, (NSC) determined that in light of the extraordinary circumstances affecting the vital interests of the United States and the senstivity of the activities contemplated in the CIA terrorist detention and interrogation program, it was essential to limit access to the information in the program. NSC officials established a special access program governing access to information relating to the CIA terrorist detention and interrogation program. As the executive agent for implementing the terrorist detention and interrogation program, the CIA is responsible for limiting access to such information in accordance with the NSC’s direction. [my emphasis]

See the funny bit? The first paragraph says the Director of the CIA "shall" "exercise" the function of creating special access programs pertaining to intelligence. But then the very next paragraph says "NSC officials established a special access program." One paragraph says the Director of CIA has to do it, but the next paragraph admits someone else did it. 

And in case you were wondering whether the EO was really serious about the Director of CIA having to make the SAP, here’s the language from the EO:

Unless otherwise authorized by the President, only the Secretaries of State, Defense, and Energy, and the Director of Central Intelligence, or the principal deputy of each, may create a special access program. For special access programs pertaining to intelligence activities (including special activities, but not including military operational, strategic, and tactical programs), or intelligence sources or methods, this function shall be exercised by the Director of Central Intelligence.

What do you want to bet that the "NSC Officials" who made this a SAP were not the Secretaries of State, Defense, or Energy–or their Deputies? 

Mind you, the passage does say, "unless otherwise authorized by the President," and this EO is the famous source of the Fourth Branch’s claims that he should be treated just like the President for the purposes of this EO, so if Dick Cheney happened to tell his Deputy, Scooter Libby, that it was time to make this a super secret program to keep it away from people like Colin Powell, I’m sure the Fourth Branch’s lawyer, David Addington, would have a legal excuse ready at hand. 

So, for the moment, let’s just note that there’s something funny going on with who made torture a special access program. 

TOP SECRET Torture Becomes Special Access After the Fact

Now, let’s talk about the funny things going on with when torture became a special access program. Bybee One–the memo generally authorizing torture–was not classified at all.  Bybee Two–the memo authorizing specific techniques–was classified TOP SECRET, but had no markings for a special access program. It appears that when these memos were written, the torture program was not yet a special access program.

The 2003 Yoo memo–written to authorize torture by DOD–is a special case, since it’s not part of the CIA program. It was classified SECRET. Yet it’s special, too, because of the funny treatment it got. As Bill Leonard testified

the OLC memo did not contain the identity of the official who designated this information as classified in the first instance, even though this is a fundamental requirement of the President’s classification system. In addition, the memo contained neither declassification instructions nor a concise reason for the classification, likewise basic requirements.

There’s more more–such as Leonard’s observation that the memo, which breaks all the EO’s rules on classification, was completed within a week of the EO that governs classification.

Finally, there are the 2005 memos–the Bradbury Memos (Techniques, Combined, CAT). All are classified TOP SECRET and all include what I understand to be redacted compartment information (the redacted word between TOP SECRET and NOFORN). In other words, it appears that this program did not start out as a special access program, but it became one, at the direction of "NSC Officials" some time between 2002 and 2005.

Cables Marked as SECRET Become TOP SECRET

Then there’s the last bit, wherein cables originally classified as SECRET apparently have become TOP SECRET.

In his declaration, Panetta notes that some of the documents in the declaration were not marked properly:

Many of the operational communications were originally marked as SECRET in our communications database even though they should have been marked as TOP SECRET, and some of the miscellaneous documents were not properly marked. While we are not altering original electronic copies, this error is being corrected for copies printed for review in this case.

Given that Panetta uses the word "many," I assume this means more than just the one operational cable from HQ to Field, dated November 30, 2002, that is marked SECRET on the CIA’s list of documents (I believe the other documents marked SECRET are what Panetta treats as "miscellaneous" documents). So, first of all, there’s the funny detail that the CIA has been representing these documents to be TOP SECRET to Judge Hellerstein since at least May 1, yet they’re only now getting around to telling him (now that they’re turning some over for his review) that they were originally actually marked SECRET.

But here’s another funny detail. Similar cables from 2004 (see documents 54 and 55) were also marked SECRET (though some in the same series–particularly those from HQ to Field–were marked Top Secret). Now I have no way of knowing that these cables are exactly analogous (though I suspect they include discussions about whether to torture Hassan Ghul), but they do pertain to torture and detention. 

So did they just discover all of these cables from the field should have been marked TOP SECRET from the start? Or did the rules change, once the program was designated–by people in NSC, not CIA–that it should be a special access program? Or is the SECRET designation a more recent phenomenon, one tied to the FOIA?

There’s a lot that’s funny about the classification of this program. But it sure looks like they were making up the classifications–like the program itself–as they went along.

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.

65 replies
  1. LabDancer says:

    So if you happen to be in a position where there’s arguable merit in channeling Bill Leonard, wouldn’t you be asking the team of government lawyers appearing before you, not just when these items became classified as they now purport to be, but by whose determination and under what protocol?

    • emptywheel says:

      Though hopefully ACLU hits on this issue.

      “Um, Judge Hellerstein? Do you thikn it’s curious that the people who we want to hold in contempt for destroying evidence have retroactively compartmented this stuff?”"

  2. MadDog says:

    Perhaps the infamous Addington was at it again, and invented another classification category for PapaDick Cheney: “Treat as if SCI – Requires Barnacle Clearance.”

    • MadDog says:

      Seriously, I’m guessing that Cheney himself did the “NSC officials established a special access program governing access to information relating to the CIA terrorist detention and interrogation program.” thing himself based on the March 25 2003 EO 13292:

      Sec. 1.3. Classification Authority. (a) The authority to classify information originally may be exercised only by:

      (1) the President and, in the performance of executive duties, the Vice President;

      (My Bold)

      And given the above, that makes me wonder if there are not more than 1 SCI-classified programs regarding the Torture Enhanced Interrogation of HVDs.

      Remember that the 2 documents that Cheney wants declassified to prove that valuable and actionable intelligence was gained from the Torture Enhanced Interrogation of HVDs was referred to the CIA for declassification review.

      This may say that the CIA itself has the originating SCI authority over information gained by the Torture Enhanced Interrogation of HVDs.

      It may also simply mean that the CIA’s information in this area is not SCI-limited.

      This is a possibility since the information gained from Torture Enhanced Interrogation of HVDs likely had a wide distribution audience throughout the entire Federal government (White House, DOD, DOJ, DIA, FBI, DHS, various military organizations, etc.)

      • emptywheel says:

        Oh, I think we all agree that this has hte fingerprints of the Fourth Branch on it (which is that EO you pointed to).

        Well, that’s one of the reasons I raised the John Yoo DOD memo, which shouldn’t be related. No one wanted to talk about who owned that. And it only came out after Haynes escaped to his sinecure at Chevron. But I always assumed that it was Cheney who ordered it classified, and in Haynes absence they were able to force its declassification.

        • MadDog says:

          Hmmm…am I missing something on the Yoo memo and Leonard’s statement, particularly this part:

          …the OLC memo did not contain the identity of the official who designated this information as classified in the first instance…

          Isn’t the identity of the official this:

          Declassify under authority of Executive Order 1958
          By Acting General Counsel, Department of Defense
          By Daniel 1. Dell’Orto
          31 March 2008

          • emptywheel says:

            Dell’Orto declassified it. But that doesn’t mean he classified it. It was unclear–and remains unclear–who had original classification authority over that document.

            • Mary says:

              I think there’s even the very good argument that between the facts that you can’t “classify” legal analysis and this never was marked as classified, it was actually never classified. Period. So there was never any “classification” protection for not making it avaialable.

  3. jbnhm says:

    OT You’ve written about State Secrets Privilege on this blog before if I’m not mistaken. Thought you might be interested in this. Sibel Edmonds, FBI whistleblower and the most gagged woman in US history (by the SSP) has recently started her own blog. Just today she published what, at least in my opinion, is a bombshell op-ed on the subject.


  4. JimWhite says:

    Here is the current description of the makeup of the NSC from whitehouse.gov:

    The NSC is chaired by the President. Its regular attendees (both statutory and non-statutory) are the Vice President, the Secretary of State, the Secretary of the Treasury, the Secretary of Defense, and the Assistant to the President for National Security Affairs. The Chairman of the Joint Chiefs of Staff is the statutory military advisor to the Council, and the Director of National Intelligence is the intelligence advisor. The Chief of Staff to the President, Counsel to the President, and the Assistant to the President for Economic Policy are invited to attend any NSC meeting. The Attorney General and the Director of the Office of Management and Budget are invited to attend meetings pertaining to their responsibilities. The heads of other executive departments and agencies, as well as other senior officials, are invited to attend meetings of the NSC when appropriate.

    Hmmmm. So when the Panetta declaration says “Officials at the National Security Council, (NSC) determined …”, I automatically read it as “Dick Cheney determined”. What I find interesting is that the current description doesn’t mention the Vice President’s Chief of Staff but does mention the President’s. Addington is my bet for how “Offical” became “Officials at the National Security Council”, although I suppose it’s possible Cheney just brought Bush along on creating compartmentalization just as he brought him along on “bascially” authorizing torture in the first place. What’s really intriguing here is how Cheney managed to compartmentalize through NSC in a way to exclude some NSC members, especially Powell.

    This uptick in classification also seems to me to fit into the timeframe where it seems there was a particularly adverse outcome. Is the compartmentalization just another ploy to cover up a death or other horrible outcome?

    • emptywheel says:

      Yeah, and remember that it was NSC that refused to release the SSCI narrative last year–again, could be a code way for saying “Fourth Branch.”

      Though remember that, through most of 2005, Scooter Libby was Dick’s Deputy on NSC, so he’s actually a candidate.

      Because, you know, Scooter Libby’s so careful about classified information and all taht.

      • LabDancer says:

        Yeah, Scootzie of course; and he was also “an” assistant to the president. But the little torture fantasizer wasn’t “the” assistant to the president “for national security” — those were respectively Condi and Hadley.

        [As to Hadley, sorry for not resisting:

      • bmaz says:

        I don’t think it applies here, but did Scoots not have an “assistant position” with the President concurrently with Dick?

    • acquarius74 says:

      Jim, Marcy and All, this is a very important matter you quote. Seems Bush/Cheney/Addington and the CIA itself had forgotten that the only way by law that the CIA can put a plan/program into action is at the direction of the NSC.

      Seems logical to me that it was Addington that caused the later NSC paragraph to be added at some later date than the EO in which Decider Bush directed that the CIA “shall” exercise the Program. Under the 1947 law which established the CIA, it operates at the direction of the NSC.

      There was much discussion in DC at that time; some wanted the CIA to be under the President’s office and control; others feared that it would become the President’s own Gestapo (which under Bush it seems to have become). The wiser heads prevailed then resulting in the distinct placement of the CIA under the NSC with authority to put a program into effect only at the direction of the NSC.

      There is another thing that bugs me: It appears to me that Pinetta uses the words ‘information’ and ‘intelligence’ indiscriminately. The CIA is supposed to collect information, analyze it (beat the Hell out of it like Marcy and you pups do) and from all the dredged up stuff, determine what is ‘intelligence’. Seems to me that Cheney Inc. treated every word that fell from the tortured detainee’s mouth as intelligence. Big mistake.

      This info has been gleaned from several books I have. I’ll dig through and quote title and page if required.

      [IMHO, this bunch at Emptywheel are much better ’spooks’ than those high dollar bumbling clowns in DC.]

  5. dosido says:

    Hey, I’m sorry if my naivete is showing…could Panetta and Holder possibly being kicking the war crimes/torture photos/disclosure can down the road until we have a troop draw down in Iraq? I mean, what about the line that al Maliki asked Obama not to disclose the photos?

    Sorry if this was already shot down. Just muttering to myself. Thanks for posting The Awesome Sen. Whitehouse speech on the earlier thread. I doubt I would have seen it anywhere else but the Lake.

  6. klynn says:

    EW wrote:

    There’s more more–such as Leonard’s observation that the memo, which breaks all the EO’s rules on classification, was completed within a week of the EO that governs classification.

    I cannot tell you how much this made me, in a tragic sense yet looking at the potential for Hellerstein, ROTFLOL over that bit you wrote. Talk about timeline “gold”!

    My guess is, someone lurking over your work just created a brick.

  7. alabama says:

    Since Panetta does the bidding of Obama, it follows that Obama is responsible for the stonewalling. Not just stonewalling, but “hoarding”: all information gleaned by Panetta and withheld from the public can seen as a dagger pointed at the shivering hearts of Bush and Cheney.

    Obama, indeed, may know more at this point than the two of them put together. I think Cheney in particular must be going wild over this quite-unintended gift to Obama. Where the withholding of things was meant to strengthen Cheney, it now sits like a loaded revolver in Obama’s hands. Cheney, being a bully, is also a coward, and so Obama gets to scare him to death on a daily basis.

    This information, of course, is a “wasting asset”: it loses its blackmail value in the light of day. But Obama can always “waste” them whenever it suits him–as when running for re-election. Opportunistic timing, not justice per se, might finally determine the release of these materials.

    As always, Cheney did it to himself, and to his comrades as well. How Rumsfeld must regret having taken Cheney under his wing! He’s being shot in the face with the very shotgun he gave to this faithful servant.

  8. MadDog says:

    Totally OT – I hadn’t previously read this June 5, 2009 “Briefing Order” (2 page PDF) by Judge Walker on Al Haramain v. Bush, so this part caught my eye:

    …Plaintiffs shall notice their motion for summary judgment for September 1, 2009 at 10:00 am. Plaintiffs shall base their motion on non-classified evidence. If defendants rely upon the Sealed Document or other classified evidence in response, the court will enter a protective order and produce such classified evidence to those of plaintiffs’ counsel who have obtained top secret/sensitive compartmented information clearances (Messrs Eisenberg and Goldberg) for their review. Otherwise, the court will consider the motion on non-classified evidence.

    (My Bold)

    I would ask our resident Legal Eagles to assist here.

    Am I to understand that Judge Walker is stating, for the record and quite clearly, that he will indeed provide plaintiffs access to that “Sealed Document”?

    Isn’t this a new decision on Judge Walker’s part?

    Or have I been sleepwalking through life again?

    Mind you, one does not exclude the other. *g*

    • bmaz says:

      No, that is just the formal order that followed the extremely sparse minute entry from the hearing on June 3. This is exactly what we thought happened. That said, I am still awaiting the transcript from june 3, because I understand it was one interesting hearing.

      • MadDog says:

        But I thought that no decision had been made by Judge Walker to force the issue of allowing the plaintiffs access to the “Sealed Document”, and now with this order, Judge Walker has explicitly come out and stated that he will indeed do so.

        I guess I must have missed it if that “decision” had already been pronounced.

        • bmaz says:

          No, he has not. He has boxed the government in and put the onus on them. Only if the government affirmatively uses and relies on sealed/classified information will he order it released to Eisenberg under protective order. If the government affirmatively does that, they have caused the very situation they will then complain of and will be in a weak posture of their own making. Walker believes that if this is what occurs, that he can then proceed under the protective order without having created an immediately appealable order. This is exactly what he has been setting up for a while now.

    • Hmmm says:

      That’s interesting. Of course USG could appeal the Briefing Order on that point, could it not? There’s certainly time to do so.

          • bmaz says:

            I think (crossing fingers) that Walker can keep this away from further interlocutory appeal to the 9th Circuit until the ruling on the summary judgment motion. Hopefully…..

            • Hmmm says:

              Interesting. Let me see whether I comprehend the logic here, as it relates to the bigger picture of the case.

              1. If USG relies on sealed/classified info, then:
              A – Such info is disclosed to plaintiffs’ cleared attys.
              B – Presumably USG’s defense is strengthened, and this may cause them to win on SJ.
              C – However plaintiffs’ attys’ knowledge of such info may also lead to additional causes of action and/or addition or further defendants, including presumably other USG and private entities.
              D- And there is a possibility that such info could leak, damaging USG in other ways.

              2. If USG does not rely on sealed/classified info, then:
              A – Presumably USG’s defense is weaker and this may cause USG to lose on SJ.

              Looks pretty lopsided to me. So why wouldn’t USG not simply decide to not disclose the sealed/classified suit, and accept a loss on SJ? I guess I’ve lost track of what USG stands to forfeit if it loses the case…?

              • emptywheel says:

                It is a heads we win tails Gov loses–but then, it would be if there were a fair review in any case.

                So the question is how to process that through a court such that it doesn’t work out ot be Gov takes its toys and goes home.

                • Hmmm says:

                  Senior moment here… Since the USG is the defendant, how could it take its toys and go home?

              • bmaz says:

                What EW said, but I would add this: I am not sure that the government’s case is strengthened by resorting to the sealed/classified matters. The most infamous piece of that is the “sealed document”, which is a surveillance log that, from everything we know, proves illegal conduct. Not sure they are that interested in putting that forward and it hurts their case to do so. On the other hand, that would probably get them a legitimately appealable order. This is why I have been saying Walker is boxing the suckers in. It really is masterful positioning by the court.

                As to your question @42, the way they could “take their toys and go home” would be to do what is called “withdrawing their pleadings” which means exactly what it sounds like and then a default would be entered. The other thing that has been discussed is their threat to come in and take the sealed documents from the court; but, quite frankly, I don’t think at this point that would phase Walker, he would still enter summary judgment against them and they set off a war the likes of which haven’t been seen since Marbury v. Madison. I have never thought this was really a legitimate threat.

                • Mary says:

                  Gov would normally be going after standing with defendants relying only on public info. But with sealed evidence going specifically to standing which the court and both parties know that Plaintiffs have seen, and are aware of, but which they can’t rely on for the SJ filing, he’s pretty much daring gov on the standing issue.

                  Sign a pleading in his court with the info that he has on file (albeit sealed), saying there is no standing, and reap the consequences. But once you get to standing for anyone, then you start kicking the standing door further open for the next case.

                  • bmaz says:

                    I don’t know how this ends, maybe badly still – who knows – but it is a thing of beauty Walker has set up so far, eh?

                    • Mary says:

                      Yep, and I as struck the other day by one possible way the three cases (the telecom case, al-Haramain and Jewel) might playou that would be very interesting. Probably not thought through and pie in the sky, but if I get time I’ll flesh it out and put it in a comment and see what you litigator types think, but along those lines if I were EFF, I’d be wanting to make sure that they ask for a preservation or continued preservation order in connection with the dismissal against them, for all info on the program involving the telecoms AND non-telecom actors.

  9. Rayne says:

    I think I may be able to do a Judith Miller “I was fucking right” WRT SAPs.

    More specifically, ACCMs.

    The clarity about the classification could well be a feature and not a bug if this is an ACCM and not an SAP. Re-read that bit from William Arkin which I had to reproduce here. Congress must be notified WRT to establishment of SAPs, but there is no requirement to do so with ACCMs, and this could explain some of the fuzziness about the notifications to Dems on intel committees. The Bush admin, if backed into a corner while in office, would simply whip out the ACCM excuse.


    But there is no special clearance required, no non-disclosure agreement, no separate communication system needed to transmit ACCM information.

    There’s likely no classification process per se, either, unlike that required with a rigorous and documented SAP.

    And in theory with an ACCM, we might see unusual forms of funding authorization which don’t follow the norm for SAPs.

    Lastly, folks in the intelligence community might not be happy about any effort to disclose this last level of covert ops; this kind of program is deep and dark. Would they have told Panetta they didn’t want this kind of activity exposed because other still-active ACCMs might become more obvious?

    • emptywheel says:

      No, you only get to prove you were fucking right if 1) we doubted you, and 2) if you were a big pundit who relied on being proved fucking right to maintain your role on the cocktail circuit.

      So, sorry. You don’t qualify.

      But it sure would explain a few things: the non-notice to Congress, Pelosi’s comments about appropriations.

      When I wrote this post, I originally capitalized SAP, but then changed it bc that’s more a DOD thing. But if this did go through on a DOD Approp–an emergency supplemental, as Pelosi said–then it would explain why SAP instead of SCI, and would explain why NSC Officials (potentially including Rummy) approved it.

    • MadDog says:

      Pardon me, but that was an old WaPo article. For some reason, my calendar is still stuck on May instead of June.

      Sheesh! Sorry about that! *g*

  10. Rayne says:

    May seem slightly OT, but it’s not.

    When and what was the very first reference to “enhanced interrogation techniques”?

    • emptywheel says:

      No, it’s not–I see where you’re going. I think it might be right around 2005, though it might date back to Tenet’s 2003 statement.

      • emptywheel says:

        TPMM said 2004:

        A Nexis search which we should have done earlier shows that the term “enhanced interrogation techniques” was used by CIA from June 2004 onwards. That month, the Associated Press reported:

        The CIA has suspended use of some White House-approved aggressive interrogation tactics employed to extract information from reluctant al-Qaida prisoners, The Washington Post said.

        Citing unnamed intelligence officials, the newspaper reported in Sunday’s editions that what the CIA calls “enhanced interrogation techniques” were put on hold pending a review by Justice Department and other lawyers.

        So the use of the term does indeed appear to have coincided with the emergence of widespread concern about the use of such techniques, and it doesn’t seem to have been in use when Pelosi was briefed in September 2002. But clearly the term was in use two years earlier than we originally said.

      • bmaz says:

        We talked about this not that long ago and somebody found it effectively used pretty early on (at least 2003, if not earlier, if I remember correctly). But I recall somebody finding it earlier than 2004.

      • Rayne says:

        So no chance “ACCM Enhanced Interrogation Techniques” or “ACCM EIT” was implemented as early as 2003 (with possible reclassification effort at later date) by either/or/both Tenet as DCI, or Deadeye as VP, both members of the NSC?

        The only think I think we’d be missing is an FPCO, and either Addington or Scooter could have done the job handily given the weirdness of the information handling process.

        • emptywheel says:

          No, I think there is a chance. Tenet did a guidance for torture in early 2003, I think (WO will have the details when he shows up), and that may have used the term.

          • MadDog says:

            That document by CIA Director Tenet signed on January 28, 2003 is here (4 page PDF) from the ACLU.

            Note that it refers to “enhanced techniques” rather than “enhanced interrogation techniques”. I suspect the use of EIT as an acronym was right around the corner.

            • emptywheel says:

              That appears to have about 14 characters of a compartment designation on it–assuming it also has NOFORN redacted.

              In other words–it appears to come post-SAP.

              • MadDog says:

                In other words–it appears to come post-SAP.

                And that narrows the beginning of a CIA-used SAP timeframe from September 12, 2001 through December 2002.

                This still does not answer whether there was a NSC-created “SAP” separate from a CIA-created “SAP”. Possible and not to be discounted.

                • Rayne says:

                  Also doesn’t rule out that it was an op which appeared on the face of it to be something else entirely.

                  Office of Strategic Influence, for example, would have “lived” in that window from Sep. 12, 2001, through Nov. 2002; Rumsfeld said he’d keep everything it was going to do and give up the name. We’ve kicked around the idea that this was not about obtaining intelligence, but something else; what if it was about “influence”, meaning creation of answers under duress?

                  Pure conjecture, mind you, just an example of an option they had.

                  kgb999 (46) has another good option, too; given that we know of a former SERE consultant/trainer at Gitmo, and an effort to “Gitmo-ize” other sites like Abu Ghraib using 18-20 year-old troops to do interrogations, they could have masked the entire thing under development of interrogation training material at Gitmo by Mitchell-Jessen and implementation of the training op through young troops at Abu Ghraib.

                  We’re still missing some piece or pieces of the puzzle here.

                • WilliamOckham says:

                  I’m not sure we can judge from that document. I think the SAP came in July 2004. My initial review of the previous Vaughn-like index shows a real increase in classification levels about that time, perhaps because of Abu Ghraib.

                • Mary says:

                  I’m thinking more and more that the Aug 2002 CIA memo on innocent detainees and war crimes might have been the trigger, esp with the showdown involving Gonzales and Addington and Flanigan squaring off against Bellinger. THey probably were way less than happy that Bellinger had Gordon with him at that showdown.

                  And apparently Chertoff was not being nearly as cooperative as they might have hoped and was holding out for criminal trials and refusing to sign off on “Clean Team” type concepts for re-interrogation of tortured/abused detainees being held withotu habeas.

                  The more people who were in the loop, the more resistance they got. But esp with a memo saying that war crimes were being committed as a document that might get in circulation.

  11. kgb999 says:

    For special access programs pertaining to intelligence activities (including special activities, but not including military operational, strategic, and tactical programs), or intelligence sources or methods, this function shall be exercised by the Director of Central Intelligence.

    The Armed Services Committee detainee report says on Aug 12, 2002 the JPRA got a request from [some entity] for additional training (I assumed the same group trained Jul 1-2 on waterboading,etc. before Afghanistan deployment). JPRA created a training CONOP for the entity and started “Project22b” to “limit JPRA distribution of sensitive activities in support of [Mystery entity]” (Col Moulton wrote that protecting information associated with these activities was “of paramount concern” and that a congressional inquiry was expected in the future). It was staffed through the Joint Chiefs and Office of the Secretary of Defense.

    Could that have anything to do with setting up a “SAP”? Aren’t both the SecDef and Joint Chiefs Chairman members of the NSC? I don’t really understand how it works, but couldn’t they have filed much of this interrogation program under “military” (special forces taskforce or something) instead of “intelligence”?

  12. fatster says:

    This article, which I think I (or someone else) linked a couple of days ago, has now made it to salon.com

    The CIA’s secret history of psychological torture

    Throughout the Cold War, the agency outsourced abuse to other nations. Will Obama put us back on this path?
    Editor’s note: This article has also appeared on TomDispatch.com.
    By Alfred W. McCoy

    “Despite dozens of official inquiries in the five years since the Abu Ghraib photos first exposed our abuse of Iraqi detainees, the torture scandal continues to spread like a virus, infecting all who touch it, including now Obama himself. By embracing a specific methodology of torture, covertly developed by the CIA over decades using countless millions of taxpayer dollars and graphically revealed in those Iraqi prison photos, we have condemned ourselves to retreat from whatever promises might be made to end this sort of abuse and are instead already returning to a bipartisan consensus that made torture America’s secret weapon throughout the Cold War.

    . . .

    “To most Americans, whether they supported the Bush administration torture policy or opposed it, all of this seemed shocking and very new. Not so, unfortunately. Concealed from Congress and the public, the CIA had spent the previous half-century developing and propagating a sophisticated form of psychological torture meant to defy investigation, prosecution, or prohibition — and so far it has proved remarkably successful on all these counts. Even now, since many of the leading psychologists who worked to advance the CIA’s torture skills have remained silent, we understand surprisingly little about the psychopathology of the program of mental torture that the Bush administration applied so globally.”


  13. Jeff Kaye says:


    Army Regulation 380-381
    21 April 2004
    Effective date: 21 May 2004

    Special Access Programs (SAPs) and Sensitive Activities

    …Alternative compensatory control measures (ACCMs) cannot use the extraordinary security measures reserved for SAPs (that is, access approval authority, signed indoctrination and termination statements, billet structures, and so on). ACCMs may be established only in accordance with Department of Defense Directive (DODD) 5200.1-R and only for intelligence and operations and support, when information requires enforcement of strict need to know but does not rise to the level requiring SAP protection. ACCMs are not authorized to protect acquisition programs….

    …Proponents of acquisition, intelligence, or operations and support activities who identify particularly sensitive information that is believed to merit SAP protection should report this information through the chain of command for a security policy review. If a determination is made that the information warrants SAP controls, the DCS, G-2 and the DCS, G-3 report this to the Chief, TMO, while the program executive office (PEO) (Acquisition) and the Army Materiel Command (AMC) or the appropriate MACOM report to the Director, Secretary of the Army, Acquisition, Logistics, and Technology-Systems Special Programs (SAAL-SSP), who coordinates a security review at Headquarters, Department of the Army (HQDA). SAPs are not programs or activities planned and executed with the intent to influence U.S. political processes, public opinion, policies, or media. The establishment of a SAP will be based on a determination that normal security protections are not adequate based on the threat and/or vulnerability or the information to be protected, and that enhanced security protections are required. Examples of potential SAPs include, but are not limited to —

    (1) A specific technology with potential for weaponization that gives the United States a significant technical lead or tactical advantage over potential adversaries.

    (2) Sensitive technology or unique capability especially vulnerable to foreign intelligence exploitation without special protection.

    (3) An emerging technology, proposed operation, or intelligence activity risking the compromise of other SAPs.

    (4) Exposure of sensitive activities that could jeopardize the lives of U.S. citizens.

    (5) Extremely sensitive activities conducted in support of national foreign policy objectives abroad, which are planned and executed so that the role of the U.S. Government is not apparent or acknowledged publicly.

    (6) Methods used to acquire foreign technology or equipment.

    (7) Sensitive support to DOD and non-DOD agencies.

    Based on above, looks like two SAPs: the first, unacknowledged, CIA, or a joint forces operation; the second “NSC” SAP acknowledged, or is now. The “NSC” (Cheney?) SAP is implemented as a special level of secret operation to cover-up the torture (and that’s a war crime all by itself, and Panetta’s admission of that cover-up is strange to me, but then I imagine he was forced to it, in order to make his case in squelching the documents).

    Lots of other good stuff from this document at the link.

  14. wigwam says:

    Per Jason Leopold, Panetta protested that:

    Additionally, disclosure of explicit details of specific interrogations where [enhanced interrogation techniques] were applied would provide al-Qa’ida with propaganda it could use to recruit and raise funds.

    Similarly, prosecuting the perpetrators would diminish the propaganda value of our misdeeds, if that’s a real concern for Panetta and the CIA.

  15. fatster says:

    4 Chinese Muslims released from Guantanamo

    Thirteen to go, I guess.

    4 Chinese Muslims detained at Guantanamo have been released to live in Bermuda

AP News
    Jun 11, 2009 08:04 EST

    The four are part of a group of 17 Chinese Muslims who have been in legal limbo at the military detention center in Cuba.

    . . .

    The Uighurs’ lawyers said they will be part of Bermuda’s guest worker program.


  16. Mary says:

    Random stuff:

    They really really didn’t want to have to deal with Will Taft, whose memos on the GCs made them look like idiots and who didn’t seem to have any particular fear of taking on David Addington.

    If it was “officials at” the NSC, I guess you might have the Secretary of Defense involved, which would make Rumsfeld’s ‘few bad apples’ reaction to his Abu Ghraib that much more *interesting* But isn’t it an interesting concept, that you could have ‘officials at’ the NSC decide that others within the NSC wouldn’t get access to torture information. Kinda defeats the purpose of there being a “council” doesn’t it? Especially if you didn’t want someone like Taft signing out memos that just flayed your torture authorizations.

    I’m wondering how the timing on the decision to segregate coincided with the discoveries by CIA that many of those held at GITMO were innocent and their officer creating a written record/memo of that determination? (Anything that looks like that memo in the Vaugh Index?) If, after what he’d already put together, Taft (and Powell) got access to that information I’m pretty sure there would have been a big flare up.

    Mayer talks about the fact that Bellinger, as top NSC counsel and top WH lawyer on security, was NEVER briefed in on the unconstituional surveillance program and makes it sound a lot like, while Cheney/Addington made the decisions, Gonzales as WH counsel migth have been the implementer.

    From Mayer’s Dark Side, on the CIA memo

    After completing his survey in Guantanamo, the CIA officer wrote up a detailed report describing his findings. He mentioned specific detainees by name, so there was no confusion about whom the United States was wrongly holding. He made clear that he believed that the United States was committing war crimes by holding and questioning innocent people in such inhumane ways

    The reason that the DTA and later MCA were needed was of course that EVEN YOO didn’t really make any attempt to argue that the GC suspensions could apply to innocent people. In the “second” (combined) memo, Bradbury does try to go part of the way there re: the abusive treatment of innocent people being ok under 18 USC 2340, but he doesn’t even try to tackle the Article 147 GC issue (or GCs in general)

    Glad you also mentioned the DoD “declassifed but never classified and no grounds for either the action or inaction” memo.

    On the retroactive classifications, in addition to the cables I wonder about the “notes” that were being taken while watching the CIA videos. That sounds like it could be notes from IG inspectors who were watching the videos. Whether that is the case or not, those notes are not “operational” which is what Panetta keeps trying to claim for other info like the cables. More so, if they were prepared in connection with an internal investigation for wrongdoing/criminal activity – and esp if they were prepared in connection with an IG determination of criminal activity. It’s pretty darn difficult to argue that notes from investigators, investigating criminal acts, while watching (after the fact and in a non-operational aspect) the torture videos, are not being suppressed with an intent to cover up criminal behavior.

    I think that Mayer’s sources specifically used the phrase “shock the conscience” when they told her what the effect of watching the memos would be. If notes mention that phrase, then Panetta covering it up is very very bad. It’s no wonder he put the weird language in his “declaration” (which should be of facts) that “judgments” in the declaration are his own. He’s agreeing to put his own head in the noose to insulate the torturers and the Obama exculpators heading the DOJ and sitting in the Oval Office.

    And back to an issue that’s bugged me on the CIA briefings (and lack thereof) to Congress that overlaps here. Just like not briefing Congress required some findings on an covert program and some findings/statements specifically explaining why the Intel committees were not briefed, this concept of creating a special access program requires a finding. Has Congress ever been briefed on THAT finding?

    I can’t think of any reason anyone would exclude Sec of State and Counsel, from programs involving having our foreign contacts enter into joint crime interrogation programs with us, unless someone didn’t want Taft to keep papering the file with objections.

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