The CIA Continues to Cover Up Bush’s Authorization of Torture

Reading the unredacted sections of this ex parte hearing on the ACLU’s torture FOIA leads me to suspect the CIA is trying to keep hidden all mention of Bush’s September 17, 2001 Memorandum of Notification authorizing a range of counterterrorism activities.

Take a look, first of all, at the discussion about Judge Alvin Hellerstein’s problems treating something that is redacted in the “second and fourth” OLC memos as an Exemption 3 sources and methods withholding. He objected, apparently, because the redacted information was not a method, but instead the source of authority.

Judge Carney: Judge Hellerstein rejected the characterization of that as a method, and said instead this is a source of authority.


JUDGE CARNEY: I have a follow up, if I may.

So if I understand the government’s position, your position Is the material redacted from the second and fourth OLC memos was properly exempt under Exemption 1, and that Judge Hellerstein’s ruling then was somewhat incomplete in that he rejected and demanded that you use an alternative characterization under–he rejected it under Exemption 3. He was saying this was, a source of authority, not a method.


MS. LA MORTE: I don’t recall an expressed ruling in the transcript about Exemption 1. I think what Judge Hellerstein’s thought process was, was that this was a source of authority, and that’s it, not an activity, not a method.

Now, we know what the source of authority for the torture program was thanks to reporting on it–it was purportedly authorized by Bush’s September 17, 2001 Memorandum of Notification. Here’s how the NYT described it as early as 2006.

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.

LaMorte’s descriptions introducing these particular OLC redactions make it fairly clear that the authorization in question is the one that authorized the capture and detention of top Al Qaeda figures–that is, the September 17 MON.

Ms. La Morte: [In response to a question about sources and methods redactions] That’s absolutely correct. So, for example, in the OLC memos, [1.5 lines redacted] So that program was a program where the CIA was authorized to capture international terrorists abroad, detain them in foreign countries, and interrogate them using not only standard methods but enhanced interrogation techniques.

But that detention, that CIA detention and interrogation program, was a program that [3 paragraphs redacted]

I love how she makes a point of calling this a “CIA detention and interrogation” program; we know that the finding that authorized the program actually didn’t lay out the interrogation program. She seems awfully concerned about insisting that the MON authorized not just capture and detention, but also interrogation; I’ll explain a likely source of her concern in a follow-up post.

She goes on to suggest that if these passages in the OLC memos were revealed, it would amount to the first time this content–presumably the Presidential MON–were revealed.

And that’s important because here, the references to [half line redacted] contained in the OLC memos reveals for the first time the existence and the scope of [1.5 lines redacted] That has never before been acknowledged, and would be acknowledged for the first time simply by revealing [few words redacted] in the OLC memos.

I’ll rip this claim to shreds in a subsequent post. But for the moment I’d like to point to what I think are the redactions in question.

As noted above, Judge Carney said these redactions are in the second and fourth OLC memos. As part of the same exchange, Judge Richard Wesley makes it clear they are in one of the March 10 and the March 30 memos.

Page 29 of the March 10, 2005 Techniques memo includes this passage:

Interrogators (and other personnel deployed as part of this program) are required to review and acknowledge the applicable interrogation guidelines. See Confinement Guidelines at 2; Interrogation Guidelines at 2 (“The Director, DCI Counterterrorist Center shall ensure that all personnel directly engaged in the interrogation of persons detained pursuant to the authorities set forth in [half line redacted]

And in addition to the large redactions on page 4 and 5 of the March 30, 2005 CAT memo–which appear to provide general background on the torture program and therefore might address authorization–page 7 includes a reference to the same Tenet Guidelines.

Any interrogation plan that involves the use of enhanced techniques must be reviewed and approved by “the Director, DCI Counterterrorist Center, with the concurrence of the Chief, CTC Legal Group.” George J. Tenet, Director of Central Intelligence, Guidelines on Interrogations Conducted Purusant to the [half line redacted].

Here’s the Guidelines on Interrogation in question. You will be thoroughly unsurprised the authorities referenced in the title, as well as most of the paragraph that lays out those authorities, are redacted.

As I noted, I will have a follow-up post or two on this one. But it appears that amid the big argument whether waterboarding is an intelligence method or not is one the CIA is fighting just as aggressively: whether or not it has to reveal the already widely-reported fact that George Bush unilaterally authorized all this torture on September 17, 2001.

Update: Okay, having now figured out where the Hellerstein objections appear, I can confirm that that’s what the CIA is trying to cover up. During the October 29, 2009 hearing on these redactions, AUSA Sean Lane and Judge Hellerstein had this exchange.

MR. LANE: Correct, your Honor. They both address what the government ties been calling “the Intelligence method” withheld from the two OLC memos, and the Court has been referring to as “The source of the CIA’s authority.” That’s probably an appropriate segue to get into that issue.

THE COURT: I’ll say a word which will illustrate it in the redactions themselves. I think the government calls these “methods of interrogation” because part of the method is to seek authority from a higher source. And I’ve called these “source of authority” because I think they’re less a matter of methodology end more an aspect of authorization.

I’m not comfortable with calling these “methods,” The statute authorizes classification with regard to methods of interrogation. It does not say anything about sources of authority for interrogation, and that’s one of the tensions between the position expressed by the government and the rulings of the Court.

AUSA Heather McShain then takes Hellerstein through a line by line discussion of the redactions in question. The first comes on page 5 of the Techniques memo. The only redaction on that page is another reference to the Tenet Guidlines, again with the language following “pursuant to” redacted. While much of the discussion is redacted, Hellerstein does state that redacting this–under the guise of a “method”–is misleading.

The government lawyers received instructions that that phrase also would be covered by their need to redact. I reject that. I rule against the government on that particular point. (2.5 lines redacted) I would think, cause the descriptions to be misleading. Actually, there could not be anything other In that context than [few words redacted] Because at some point,
the source of authority has to be identified, and it could not [1.5 line redacted]

I further think that there can be no real compromise of security by noting that [few words redacted] that is involved in all of this,

Hellerstein then suggests a substitution for the redacted language, but Lane says even that is unacceptable.

So, I then put to the government whether they would like the document, if my ruling is adhered to, to be presented publicly in unredacted form on this page, or would the redaction to be kept, and the phrase [few words redacted] substituted. I leave It to them to choose which of those two.

MR, LANE: Your Honor, the government would take the position that it wants the information redacted, and is not willing to insert the phrase [few words redacted] But it is certainly conscious of the Court’s ruling.

McShain then points to the redaction on page 29–the one I noted above–as another example of the same problem.

The next redaction discussed is the long redaction on page 4 of the CAT memo (also noted above); Hellerstein reads an entire substitute paragraph into the record on that point. Though ultimately he defers to the government’s wish that it be redacted.

The discussion also makes clear–as I have noted previously–that there’s a reference to the IG report in that long redaction. The IG Report, incidentally, has two paragraphs that pertain to authority, both entirely redacted, on page 11. I’d bet money this redaction includes an excerpt from those redacted passages. Which seems to be confirmed by Lane’s careful self-correction in this exchange.

THE COURT: I think you should look at the IG report and see if there are references in the public document that reference [half line redacted]

MR. LANE; I can represent there are no references, public references [few words redacted] in the IG report.

Next, there’s an exchange about the lengthy redaction on page 5, on which Hellerstein  already ceded to the government’s wishes.

Finally, there’s the last redaction discussed–the reference to Tenet’s Interrogation Guidelines I noted above. In this exchange, the government gets stroppy when Hellerstein justifies his order requiring substitute language.

So I defer to the redaction, ruling that a phrase of equivalence and neutrality should be put inside, which I believe is my authority under the C!SA, Confidential information Securities Act, Where the Court is given the ability to summarize and create equivalences. That’s a procedure that’s done where classified information has to be introduced at trial, end there is a process by which the Court reviews that with the intelligence officials and tries to create neutral summaries that can be admitted, providing the content and the substance that has to be disclosed without compromising classified information.

MS. McSHAIN: Your Honor, i believe that applies to criminal cases.

THE COURT: it does. And civil cases, possibly. But I adopt it for FOIA,

While all this doesn’t confirm precisely how the redacted passages refer to the authority on which this torture program is based, it does make it crystal clear that the CIA objected–and continues to object–to Judge Hellerstein’s demand that the CIA at least release a summary of that authority, as well as his judgment that the authority on which torture is based does not constitute a source or method.

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.

28 replies
  1. rugger9 says:

    Not really OT, greengiant, because what’s done for the CIA is ipso facto extended to all of the executive branch since that helps hide the ball. However, I would say that this tap dancing around the 9/17/01 MON will make it easier to haul Shrub in on war crimes in the Hague, based on the treaty St Ronnie negotiated and the Senate ratified. If/when we see that 9/17/01 MON it will be apparent how unforced the error is.

    OT – Charlie Pierce dug up the AWOL story again over at Esquire, it’s worth a scan.

  2. MadDog says:

    From page 26:

    “…MS. LA MORTE: Can I say one more thing your Honor? I don’t know if your Honor is amenable to this. The one thing I would like to clarify in the public record is, it seemed to be a question what the CIA’s position is as to the legality of waterboarding in this case. And the only thing I would say on the public record is we’re not conceding or denying it, and our position is it is irrelevant to resolution of the appeal. Just because there seemed to be some confusion. If you don’t want me to say that, I won’t.

    JUDGE WESLEY: Your opponent said “conceded.” I took exception to that. I didn’t see a concession on your part.

    JUDGE CARNEY: I didn’t see a concession.

    JUDGE CEDARBAUM: In any event, it is your position that even if it is illegal, your position is your position. It is irrelevant. You are saying even if it is illegal, you object to the disclosure.

    MS. LA MORTE: Correct.

    JUDGE WESLEY: I certainly saw no concession in the oral argument.

    MS. LA MORTE: Okay.

    JUDGE WESLEY: Certainly there may be folks in the public who somehow take that, but I don’t know how I can do anything about that…”

    I see that we have another set of Three Stooges who just happen to be Federal judges.

    Waterboarding is illegal but we’ll pretend nobody mentioned that, right? Yes, your honor. Thanks!

    Imagine that!

  3. rugger9 says:

    @rugger9: Follow the link to the Texas Monthly article, it’s six pages but well worth the read. FDL has a link in the news roundup as well.

  4. lysias says:

    Why would they still so stubbornly resist at this late date revealing that Bush was responsible for the torture? It’s well known, and Bush has even admitted it. And blaming Bush would be a good way to shift the onus from the CIA.

    I strongly suspect that there are other things in this memorandum that they don’t want revealed.

  5. lysias says:

    @MadDog: If it’s illegal, how would it be improper from a legal point of view to reveal it?

    Doesn’t the executive order that is the whole basis of the security classification system expressly exclude crimes from the sorts of things that can be classified?

  6. emptywheel says:

    @MadDog: Jameel Jaffer tweeted it this morning. I’ve added an update to the post, btw, confirming that this authorization language is what they’re objecting to.

  7. pdaly says:

    Any thoughts that Bush had already signed an authorization on or before September 12, 2001?

    Check out the Sept 12, 2001 entry in History Commons. Ashcroft interrupts FBI Mueller as Mueller talks about trials for terrorists.

    “During a National Security Council meeting, FBI Director Robert Mueller begins to describe the investigation under way to identify the 9/11 hijackers. According to journalist Bob Woodward, “He said it was essential not to taint any evidence so that if accomplices were arrested, they could be convicted.” But Attorney General John Ashcroft interrupts. Woodward will paraphrase Ashcroft saying, “The chief mission of US law enforcement… is to stop another attack and apprehend any accomplices or terrorists before they hit us again. If we can’t bring them to trial, so be it.” Woodward will comment, “Now, Ashcroft was saying, the focus of the FBI and the Justice Department should change from prosecution to prevention, a radical shift in priorities.” President Bush is at the meeting and apparently does not challenge Ashcroft’s suggestion. [Woodward, 2002, pp. 42-43]”

  8. emptywheel says:

    @pdaly: No, I have high confidence it was signed 9/17/01. THough I do think there are some interesting legal implications that it was signed before the AUMF, which I also suspect was by design.

  9. MadDog says:

    @emptywheel: “By the powers vested in me from the Dark Side, I, Darth Vader, authorize you George Tenet to ignore all laws, morals and ethics. Now hop to it Georgie or I’ll waterboard you myself!”

  10. lysias says:

    @emptywheel: And the torture memos from OLC and other agencies are after-the-fact justifications for what had already started being done with Bush’s authorization. Hence their tortured logic.

  11. pdaly says:


    I’m curious to hear more. The AUMF was signed by Bush on 9/18/2001, the day after his 9/17/2001 signing of Memorandum of Notification authorizing counterterrorism activities.

    What advantage does waiting a day to sign the AUMF bring?
    I guess I don’t understand “memorandum of notification” vis a vis a “Congressional bill signed into law”.
    Would Bush signing the AUMF before 9/18/2001 presumably circumscribe the Executive’s power?
    Does the MON remain in effect after Bush signes the AUMF?
    Is the MON different than a Presidential signing statement attached to a new law?

  12. emptywheel says:

    @pdaly: I’m still thinking that through–I’m not sure. But one thing it appears to suggest is that the MON will remain in effect after any AUMF expires.

    And yes, the MON is quite different.

    The CIA has authority to break other people’s laws (and to some degree our own) so long as it has a Finding. We’ve basically built in a big carve out for the spooks in our formerly reasonably consistent rule of law. So by putting it there, then it sort of protects it from any assault.

  13. tjallen says:

    From past history of Presidential Findings, we sometimes see there were a series of findings before the last, most official finding. Often there were what might be considered “draft findings” whose wording and authorities were clarified and adjusted as needed and as developing facts warranted. Later, only the final Finding was made public, but officials revealed that there had been earlier findings, now burnt or otherwise unavailable. Eventually some were made public.

    Maybe the MON went through versions. 9/17 is 6 days after the event, and I suggest there would have been earlier versions in the first few days, perhaps presently unrevealed.

  14. emptywheel says:

    @tjallen: I’m interested in that–can you say more?

    That said, Tenet’s memoir describes basically giving Bush a wishlist leading up to the 16th, so I think 17th may still be right, if Tenet isn’t lying which is a remote possibility.

  15. Jeff Kaye says:


    @emptywheel: And the torture memos from OLC and other agencies are after-the-fact justifications for what had already started being done with Bush’s authorization. Hence their tortured logic.

    Exactly. But once the FBI started getting loud about it (particularly Soufan in Thailand), those at CIA with an institutional memory, harking back to the revelations of the 1970s, and then again about Guatemala in the 1990s, started to get jumpy, and they asked for a get-out-of-jail card literally, and also in the form of the OLC memos, postdating the torture to late-July/August 2002 that actually took place in May (or earlier).

  16. rugger9 says:

    @Jeff Kaye: #19
    However, even a get out of jail free card has limits, because world law as expressed by treaty still applies, even if the USA doesn’t prosecute. Any signatory can, and it’s why the Bu$hies have had to restrict their travels.

    The treaty is still in effect, we’ve prosecuted Japanese and VC for waterboarding which established the precedent regarding the standard of conduct. Any spooks found could join Milosevic and Ratko’s legacy.

  17. klynn says:


    Wonder if there was any “draft finding” work before the event on the 11th?

    Would Clark know? (from his book Against All Enemies)

    “At a July 5, 2001, White House gathering of the FAA, the Coast Guard, the FBI, Secret Service and INS, Clarke stated that “something really spectacular is going to happen here, and it’s going to happen soon.” Donald Kerrick, a three-star general who was a deputy National Security Advisor in the late Clinton administration and stayed on into the Bush administration, wrote Hadley a classified two-page memo stating that the NSA needed to “pay attention to Al-Qaida and counterterrorism” and that the U.S. would be “struck again.”

    and there’s:

    “Rice made a decision that the position of National Coordinator for Counterterrorism should be downgraded. By demoting the office, the Administration sent a signal through the national security bureaucracy about the salience they assigned to terrorism. No longer would Clarke’s memos go to the President; instead they had to pass though a chain of command of National Security Advisor Rice and her deputy Hadley, who bounced all of them back.”

    Why would Rice downgrade news about a national threat?
    Why would Hadley bounce back urgent “threat” intel?

    I just find it interesting that the timing of having this drafted that fast and before AUMF? Add in the meeting at Camp David a week later and Conyers finding out that the Admin wanted to also attack Iran at the same time…

    I don’t know. Just very questionable timing to pull all of this together and in the order they addressed everything. Both opened doors to expand the war further.

  18. klynn says:

    BTW, thanks for the weeding EW.

    Additionally, John Conyer’s Judicial staff report “Reining In The Imperial Presidency,” begins their investigation on September 25th, 2001 with the War Powers Act.

    Looks like the report started investigating a few weeks later than what was needed.

  19. What Constitution says:

    @Jeff Kaye: Thank you EW, Lysias and Jeff Kaye for both the broad strokes analysis and the rifle-shot summary of potential ramifications of what the DOJ is here spending such efforts to hide. A further, obvious, yet seemingly worth mentioning point: the timeline here plainly guts the fundamental premise of the Muskasey/Holder whitewash suggestion of “good faith reliance on advice of counsel” where Bush’s orders authorizing torture preceded any OLC “justifications” by this much. Come on, GWB, take a vacation in Spain for us…..

  20. lysias says:

    @emptywheel: The 16th was a Sunday, the end of the weekend when the Bush administration had those meetings about 9/11 at Camp David. The 17th was the Monday following, with Bush back in the White House and the whole White House staff available for processing a document.

  21. tjallen says:

    @emptywheel: My comments on historical findings and their earlier “draft” versions referred to Reagan’s Jan 1986 series of Findings concerning arms sales to Iran. Apparently multiple versions floated around with differing language and differing policies, and different people knew the contents of different drafts and so talked past one another; and even the wrong one got initialed by Reagan at one point.

    I did more reading on what exactly a MON is, and a very useful document is this:

    Unclassified Extract from NSDD 286:

    quoting from the link above:
    “In the event of any proposal to change substantially the means of implemetation of, or the level of resources, assets, or activity under a Finding; or in the event of any significant change in the operational conditions, country or countries significantly engaged, or risks associated with a special activity, a written Memorandum of Notification (MON) shall be submitted to the President for his approval.”

    So by 9-17 there was at least one Finding and at least one MON already in existence, assuming NSDD 286 is still operative.

    I’m not sure of the sequence of events that leads to a MON – does the CIA come to the president and say, “we need to do this differently, sign this MON,” or does the president’s security cabinet generate the new policies which differ from the Finding enough that the CIA wants/needs a MON? In either case I bet a MON is a negotiated instrument, and there are sure to be drafts, or even other, earlier initialed versions, that get superseded and disappear into history’s black holes.

    For the first few days after the attack, there were a variety of views about the possible perpetrators, and even a desire to pin it on someone, so I’d suggest that the earliest Findings and MONs after 9-11 were filled with errors and embarrassments and outrageous policy choices that it might be prudent to keep hidden, once superseded.

  22. pdaly says:


    Thanks for the link. So this link states that a Memorandum of Notification is sort of an addendum to a Finding.
    I understand that a MON does not pop into existence without a preceding Finding.

    Directed to no one in particular: Do we already know which Finding this 9/17/2001 MON is referring to?

  23. tjallen says:

    @klynn: In response to your question, “Wonder if there was any “draft finding” work before the event on the 11th?,” looking at NSPD-9 (link below) I’d say, yes. I suspect a Finding would be needed to carry out NSPD-9, to eliminate the al-Qaeda network and its sanctuaries. The directive to carry this out was presented Sept 4, 2001, just 7 days before the attack. Rumsfeld’s description of NSPD-9 is interesting:

    “NSPD-9… It was the first major substantive national security decision directive issued by this Administration. It was presented for decision by principals on September 4, 2001 – 7 days before September 11th. The directive was signed by the President, with minor changes, and a preamble to reflect the events of 9/11, on October 25, 2001.” – from testimony before the 9-11 Commission on March 23, 2004, Defense Secretary Donald Rumsfeld.

    Given the goals and methods of NSPD-9, I’d strongly suspect a Finding or a MON was in the works about the same time, to carry out the President’s wishes. I guess Richard Clarke’s hair-on-fire finally got some action against al-Qaeda, just too little, too late. I bet new drafts appeared immediately on 9-11 which were 100 times more severe than anything contemplated on 9-4. But I admit I am just speculating.

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