The Memorandum of Notification the CIA Pretends Has Never Been Acknowledged

“We don’t do that sort of thing,” [Glenn Carle responded to a CIA Counterterrorism Center Deputy about “going beyond SERE” with a detainee].

“We do now,” Wilmington’s voice was flat. The conversation remained quiet.

“What about EO12333? We’ve never done that sort of thing. The Agency’d never do that. We’d need a finding, at least.”


“We have it.” Wilmington’s manner brightened a little. “We have a letter from the president. We can do whatever we need to do. We’re covered.”

–Glenn Carle, The Interrogator: An Education, approved by CIA’s Publication Review Board prior to its summer 2011 publication

Yesterday, I described how the CIA appears to be refusing to release via FOIA any mention–or even a substitution mention–of references to the September 17, 2001 Presidential Memorandum of Notification the government claims authorizes torture and a bunch of other activities.

In this post I’d like to deal with AUSA Tara LaMorte’s March 9, 2012 claim that what I believe to be the MON has never been acknowledged before.

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.

Now, as it happens, the CIA made an extensive declaration about the MON in a statement from Marilyn Dorn, the CIA’s Information Review Officer, back in 2007. The description of it–item 61–starts on page 34.

The declaration is actually pretty funny. ACLU had asked for any declarations signed by the President authorizing the torture program. There is none. So in her declaration, Dorn as much as said this MON–which doesn’t mention interrogation–was the MON in question.

Item No. 61 requested a “Directive signed by President Bush that grants CIA, the authority to set up detention facilities outside the United States and/or outlining interrogation methods that may be used against Detainees.” The CIA did not locate a document signed by President Bush outlining interrogation methods that may be used against detainees. The CIA did locate one document signed by President Bush that pertains to the CIA’s authorization to set up detention facilities outside the United States. The document responsive to Item No. 61 is a 14-page memorandum dated 17 September 2001 from President Bush to the Director of the CIA pertaining to the CIA’s authorization to detain terrorists.

So in response to ACLU’s FOIA, which basically said, “give us the legally-required MON that authorized torture,” Dorn said, “we don’t have one, but here’s what we’ve been using for all these years.” That’s pretty significant acknowledgment of what kind of authorization underlies the torture program.

Dorn’s declaration goes on to provide some detail about the memo.

This 14-page document consists of a 12-page notification memorandum and an attached two-page cover memorandum. The 12-page notification memorandum is a memorandum from the President to members of the NSC regarding a clandestine intelligence activity. The two-page cover memorandum is a transmittal memorandum from the Executive Secretary of the NSC to the Director of the CIA.

The 12-page memorandum pertains to the CIA’s authorization to detain terrorists. The memorandum discusses the approval of the clandestine intelligence activity and related analysis and description. The memorandum also discusses other matters not relevant to Plaintiffs’ general or specific FOIA requests.

Now, just as a reminder, the redactions the CIA is now fighting to retain are repetitions of a half-line phrase taken from the title of a George Tenet memo. The redactions in question are not paragraph-long descriptions of the program (Judge Alvin Hellerstein has already agreed to the government’s request to keep those two paragraphs redacted). They’re just a short phrase. About the only thing not included in Dorn’s description–but which, if I’m right that this is the MON, probably appears on the memo and possibly in this title–is the term of art “Memorandum of Notification.”

Though there is one more, potentially very significant point. Dorn repeatedly calls this a “clandestine intelligence activity,” not a “covert operation.” That’s rather funny, because one of the numerous times a CIA figure has already implicitly revealed a finding must exist came when, on April 16, 2009, Michael Hayden stated that the interrogation program had started as a covert op (I wrote about the implications of that here, though the YouTube has been lost to the Toobz demons). There are important distinctions between clandestine and covert programs, notably pertaining to whether we plan to deny our involvement in an activity and whether congressional notification–notification just like this memo–is required. Michael Hayden, in what really constitutes the beginning of an acknowledgment that this authorization had to have existed, says it was covert. Dorn says it was clandestine.

But Hayden isn’t the only former top level CIA official who has acknowledged this MON, authorizing covert–not clandestine–activities existed. John Rizzo–who was the CIA lawyer most involved in the torture program for most of its existence–provided extensive details about how (he claims) Congress was informed about it.

A few days after the attacks, President Bush signed a top-secret directive to CIA authorizing an unprecedented array of covert actions against Al Qaeda and its leadership. Like almost every such authorization issued by presidents over the previous quarter-century, this one was provided to the intelligence committees of the House and Senate as well as the defense subcommittees of the House and Senate appropriations committees. However, the White House directed that details about the most ambitious, sensitive and potentially explosive new program authorized by the President—the capture, incommunicado detention and aggressive interrogation of senior Al Qaeda operatives—could only be shared with the leaders of the House and Senate, plus the chair and ranking member of the two intelligence committees.

As always, CIA dutifully followed White House orders, so for the next five years we only told those select members—euphemistically dubbed the “Gang of 8″—about the program as it developed and expanded. Only they were briefed on CIA’s secret detention facilities overseas and the employment of so-called “enhanced interrogation techniques” (EITs), including the waterboarding of high-value detainees like Abu Zubaydah and Khalid Sheik Mohammad.

While used only rarely in the past, the “Gang of 8” notification process is explicitly authorized in the congressional oversight provisions of the National Security Act for covert actions of “extraordinary” sensitivity. It was an entirely lawful way to proceed to notify Congress about the EIT program. Yet I am convinced it proved to have disastrous consequences for CIA.


Meanwhile, other than the chair and ranking member, the two intelligence committees would be kept in the dark for the first five years of the program, as was every other member of Congress. In effect, they were given a pass on any oversight and responsibility for the program, as the attacks about what the Agency was doing escalated in the media. And to what end, all this extraordinary secrecy? Over those five years, many of the details about the program were leaking out, drip by drip, from elsewhere in the Government.

There’s a lot in this passage, and on many counts (according to their own records, CIA briefed the Gang of Four, not the Gang of Eight, for example) it’s inaccurate. But let’s start with the larger question. Sure, Rizzo was reportedly under investigation for his leaks about the drone program. So if pressed, the CIA could presumably claim this was unauthorized disclosure, as were the anonymous leaking by “three former intelligence officials” to outlets like the NYT acknowledging the MON.

Still, if I’m right and a mention of the MON is what this FOIA squabble is all about, it’s pretty breathtaking for LaMorte to suggest this has never been acknowledged, when the key lawyer involved in the process lays out the Agency’s (demonstrably inaccurate) version of the authorization process involved.

Maybe I’m completely wrong and the many reports–including the internal conversation Carle described–of the authorization behind this program are inaccurate. Maybe these redactions aren’t hiding President Bush’s personal authorization of the torture program.

But if I’m right, CIA figures have repeatedly acknowledged the MON and all this redaction fight serves to hide is written record implicating the President.

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.

14 replies
  1. MadDog says:

    “…Item No. 61 requested a “Directive signed by President Bush that grants CIA, the authority to set up detention facilities outside the United States and/or outlining interrogation methods that may be used against Detainees.” The CIA did not locate a document signed by President Bush outlining interrogation methods that may be used against detainees…”

    In reading this passage from the declaration of CIA’s Information Review Officer Dorn, I wonder about the following 2 things:

    1) Did the ACLU ask the wrong question?

    2) Did the CIA give the right answer to that wrong question thereby avoiding answering the real right question?

    Let me explain further.

    I think the ACLU blew it by asking about a document outlining interrogation methods signed by the President.

    There is no way Cheney & Co. (Libby, Addington, Flanigan, Gonzalez etc.) would ever allow the President’s fingerprints to be left on such a document.

    The document describing the level of detail regarding interrogation methods would be pawned off, and down, to someone that could be scapegoated. Like George Tenet, or even some lower level of actual worker-bee.

    In responding to the ACLU’s FOIA request, Dorn took advantage of the ACLU’s misstep, and responded literally to the ACLU’s request that nope, the President signed no such critter.

    What the ACLU should have asked, was this:

    Whether there are “Directive[s] signed by President Bush that grant CIA, the authority to set up detention facilities outside the United States and/or the authority for the CIA to conduct the interrogation of detainees.”

    I suspect that Dorn’s response then would have to be different. Perhaps even a Glomar response.

  2. tjallen says:

    A Memorandum of Notification is not a communication intended to notify congress, it is a NSDD Presidential Directive that modifies a Finding, both of which are secret from the congress, even if the Gang of 8 is notified in outline of the document’s existence. A MON implies a pre-existing Finding which it modifies.


    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.”

    I read this as saying the instrument (MON) is not primarily a notification to congress of a special activity, but rather the modification of a Finding which the CIA then uses as the legal basis of its special activity. Informing Congress is secondary, even if statutory. I could be misreading this, I guess.

  3. tjallen says:

    The second half of the same paragraph I was quoting above, says:

    “All actions to be authorized by means of an MON must be important to U.S. national security as set forth in a previously-approved Finding. An MON also shall be submitted to the President for his approval in order to modify a Finding in light of changed circumstances or passage of time; or to cancel a Finding because the special activity authorized has been completed or for any other reason.”

    which confirms that if there’s a MON, there’s a previous Finding. Again assuming NSDD 286 or something like it is operational at the time.

    In the chaotic days immediately after the attack, I sometimes doubt the letter of the law was followed in all cases. For example, the document quoted above goes on to describe an orderly policy process involving proposals, papers, policy suggestions and debates, and so on, between members of the The National Security Planning Group. I’ve heard it was more like a pitbull fight, or a “pissing contest” or worse.

  4. emptywheel says:

    @tjallen: Thanks for adding this–it’s actually an issue a number of us have tried to puzzle through form time to time. We haven’t made much headway.

    But if it is a MON–and there’s language in the hearing that may suggest it is–it may explain the sensitivity.

    I’ve wondered whether it modified Clinton’s rendition program.

  5. tjallen says:

    @emptywheel: I’m sorry I don’t stop in often enough, as I greatly admire your work, and bmaz and Mr. White, too.

    I hadn’t considered that a Bush MON might modify a Finding that was from a previous president, so I have lots more to think about now – thanks again!

  6. rugger9 says:

    MON or no MON, Finding or no Finding [I would expect this to be as protected, but maybe not], there is still the matter of the treaty, which can be enforced by any of its signatories. If the RW Wurlitzer wants to have a conniption fit about that detail, they can blame St Ronnie, he negotiated it.

    No doubt the PTBs are trying to cover Shrub’s arse since have a POTUS in the dock in the Hague is really bad optics no matter how deserved. I’m quite certain however that the “company” still has assets that are liable for pickup on these grounds, and while cogitating over this, I wouldn’t be surprised if the Russians or PRC [who may not be a signatory to the treaty, the Russians are] decide to bring in some of them. Or, maybe Raymond Davis. The problem with this for the lower-level types is how certain they will be that the CIA will protect them, buses can leave large marks, y’know.

  7. tjallen says:

    @emptywheel: Somehow I was thinking that Findings expired at midnight on the final day of a presidency, but no – Now you’ve left me with this image of Undead Zombie Findings, policy products of the previous presidency, roaming the halls of the NSC, waiting for a MON to bring them back into the action!

    On a more serious note, I now see there are (at least) two processes; in one, a Finding is made, then a new Finding is signed that supersedes it, ending the first Finding. In the second process, an initial Finding is made and then modified (over and over) by new MONs, and lives on and on, even across presidencies.

    I wonder how old the oldest active Findings are? Much to chew on here, I’ll keep quiet now and go learn some more. Thx!

  8. tjallen says:

    @MadDog: Thanks, MadDog, but I do have to find something to say! I’ve commented on this blog off and on for several years (also as tjallen54), but usually I am so angry at the topics (torture, imprisonment without trial, secret wars, assassination policies, spying, etc) that I’m afraid I’m not contributing, just sputtering. So I go away for awhile, then get drawn back. So now in a new plan, I’ve vowed to moderate myself and only comment when I have some actual information to add. We’ll see how it goes.

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