Judge Hellerstein: Yes, the Redacted Torture Authorization Pertains to the September 17, 2001 Torture Authorization

I’m still working my way through the ACLU FOIA docket in light of my ongoing series (post 1, post 2, post 3, post 4) on the Obama Administration’s efforts to keep the authorization for the torture program–that is, probably the September 17, 2001 Memorandum of Notification–secret.

Now that I’ve laid all that out, this order from Judge Alvin Hellerstein is hysterical.

By order dated October 8, 2010, I directed that the parties submit a briefing schedule with respect to the September 17, 2001 presidential directive. On October 21, 2010, I received an ex parte, classified submission from the Government requesting that I reconsider that order in light of the parties’ upcoming appeals of the October 1,2010 Order of Final Judgment on Fourth and Fifth Motions for Partial Summary Judgment. Upon reviewing the Government’s classified submission in camera, I have determined that litigation of the presidential directive is intertwined with the issues presented by the parties’ appeals of the October 1, 2010 Order, and that resolution of the appeals may be dispositive.

Accordingly, it is hereby ORDERED that litigation of the September 17, 2001 presidential directive is stayed pending resolution of the parties’ appeals of the October 1, 2010 Order.

So Judge Hellerstein orders the government to release the language describing the authorization for the torture program–which I believe is the September 17, 2001 MON–on October 1, 2010. And then the government, all secret-like, in a classified ex parte submission, asks him to hold off on the next issue in the litigation, discussions about the September 17, 2001 “Directive” noted in the Dorn declaration.

So he turns around and writes an order saying, “Hey, you know that language about who or how the torture program was authorized, that I believe the government is improperly hiding as an intelligence method? Well, the government just came to me and secretly told me it’s, um, ‘intertwined’ with questions about whether the government should have to release that September 17, 2001 Presidential directive that, as Dorn explained, ‘pertains to the CIA’s authorization to detain terrorists.'”

Next up, Hellerstein will be writing an order reading: “the resident-Pay thorized-oay the orture-tay rogram-pay.”

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.

24 replies
  1. emptywheel says:

    @MadDog: Thanks.

    And yes, occasionally they should write in pig latin. They can leak stuff and claim plausible deniability.

  2. rugger9 says:

    So, what if it is the 9/17/01 MON? Exactly what changes in terms of what we know about the Bu$hies, combined with the confirmed reluctance by the Obama WH to look backward [FWIW, a Mittens presidency would be far worse on this]? Nothing really unless heat comes out of this.

    Back in the Watergate days, this would be all over the MSM at every step, yet we see nothing in the MSM about this at all, even though we all know how important it is here.

    Until the DOJ prosecutes for real, this will serve to document the storyline for posterity, and that’s about all we can do right now.

  3. JTM says:

    I can prove, EW, that what you’ve found is not evidence that Hellerstein leaked that Bush authorized torture in the latter’s 9/17/01 MON via the former’s 10/22/10 order. My proof is simple and irrefutable. And it is this: he has not been prosecuted by Obama for said leak.

  4. What Constitution says:

    Tree. Forest. What?

    Why can’t they just deceree the same for cancer? Don’t acknowledge it exists, don’t let the courts discuss whether it exists because, well, that might involve acknowledging it exists. And then the insurance companies wouldn’t have to pay to treat it, so nobody would have to pay for premiums to cover treatments for it, which leads inexorably to … people not having it. There may be a slight gap in the logic in there somewhere, but you couldn’t prove that by the DOJ’s reasoning here.

  5. Brian Silver says:

    I’m sorry, Marcy, but Google Translate doesn’t do ig-pay atin-lay. So what you wrote in that last sentence is going to escape the lay public.

    For sure you’ve pinpointed the date and the document in which GWB most likely signed off on on torture, long before the Bybee memorandum and the blessings of John Yoo’s linguistic twistery. But suppose the document itself is written in ig-pay atin-lay, or some other elliptical language? You may not have the absolute goods on anybody, at least not a verbatim transcript that would stand up in an international court of justice.

    Nonetheless, your investigation is fascinating to observe.

  6. emptywheel says:

    @Brian Silver: No. We absolutely don’t. We know for a fact that the MON doesn’t even mention torture–or even interrogation. That’s what this post is for. It shows how the specific language in question was used to give the CIA cover for something that was, according to the letter of the law, illegal (because they were trying to avoid the Congressional notice of a real finding required to give cover under the National Security Act.

    But one of the additional things that appears to be going on is that the CIA is still relying on this very same MON–and not on the AUMF the Administration points to in public–for cover for its activities. Now I suspect they could just say, ah well, we’re going to rely on the AUMF instead (but wait! they’re not members of the military, which gets you into international law problems!). More importantly, the MON was a formal embrace of a bunch of things “we don’t do.” Only, it was done on a handshake.

    It’s a Cheney jerry-rigged Get Out of Jail Free card that may not withstand scrutiny, which would at the very least make CIA less willing to do things like kill American citizens (also authorized by this MON) with no due process.

  7. scribe says:

    D’ya think that maybe, just maybe, Judge Hellerstein has had just enough of the CIA’s and government’s bullshit? Yet he knows that, if he comes right out and calls the bullshit the bullshit it is, he’ll be disqualified off the case when DoJ applies for that in an appeal to the 2d Cir. So, he uses all his professional skill and no small experience to effect exactly what needs to be done, while doing it in a way that only those paying attention would notice.

    If the government were to make a stink about it, they’d be the ones making everyone else notice that they had just been pwned.

    Moving to another topic, I can’t see how it might be possible that a Mittens administration would or could be worse than Obama’s on this (or almost any other) issue. No one could have done a worse job when it comes to actual rule of law issues, than did Obama’s administration. It still boggles my mind, regardless of how cynical I am or try to be (pretty cynical, FWIW – I’ve spent entirely too much time hanging around courthouses), to watch egregious crimes not only unpunished, but unprosecuted and, worse, ratified, while anything remotely approaching moral conduct is made the subject of vicious, vindictive persecution under the biggest stretches of legal theory that skilled sophists ever could come up with.

    To say I’m disgusted doesn’t begin to describe it.

  8. Peterr says:

    @emptywheel:

    That seems to imply that there is someone who is interested in actually giving the Get-Out-Of-Jail-Free card some scrutiny, which (to borrow from our lawyer friends) assumes facts not in evidence.

  9. Bob Schacht says:

    @P J Evans: I never learned pig latin, but my brother did. He also learned something called “NOP,” which seems to be characterized by the frequent use of the syllable “OP”. Dunno if it might be useful for hiding secrets in plain sight, however.

    None of the kids within my ken have learned pig latin– or if they have, they are keeping it secret, as I’ve never heard them use it. It is possible, however, that the aforementioned brother has corrupted some of his adopted children in this regard.

    Bob in AZ

  10. orionATL says:

    it’s all in the past,

    but i am impressed by the speed/precipitousness of the cheney-produced mon that permitted organizations in the american gov’t to do “things we don’t do”, illegal conduct such as kidnapping, torture, murder.

    the airplane-bombing of the world trade center had happened on sept 11, 2001. 6 days later we have an mon directed at the cia signed by president bush.

    what decision-making processes, if any, took place before the mon was signed?

    how and why did we decide these illegal activities were necessary when, in fact, they proved neither necessary nor effective?

    richard clark did aver that bush, passing him on the way to the situation room, suggested to clark that the iraquis must be involved in the bombing.

    could the administration have already set the invasion of iraq as a goal prior to the wtc strike?

    was the wtc strike then seen as a gift from allah (or the saudis) with respect to this goal?

    or was this just flailing by a panicky admin?

  11. rg says:

    Considerations of exactly who authorized the torture program is important for accountability, but perhaps only of secondary importance overall. I recently read Persico’s biography of William Casey. Casey described how he wrote whatever Presidential Finding he wanted and Reagan signed them, even without reading them. From this we should recognize that these matters are a team effort, and not the rogue efforts of a bad apple president.

  12. emptywheel says:

    @rg: I think understanding the structure by which both the President and the CIA have avoided accountability are important. I’m working on a post on precisely what this finding is (yeah, I’m never going to finish this series). But you might be curious to know that this MON is actually an update of Reagan’s Finding on counterterrorism; it replaced every finding on CT Clinton had done.

    It was really set up to ensure no one had accountability: by signing it Bush put the CIA beyond accountability (with David Passaro the sole counterexample, and the more I read, the more I realize how fucked he was), but by leaving all detail of the torture out (which was done to give Bush plausible deniability), it also left the CIA very exposed. Both would sink or swim together, but both woudl also be put beyond accountability.

    There’s basically a giant hole in our Constitution because of this right now because of this MON. And yet one reason O presumably doesn’t want it officially acknowledged is because he’d have to write his own finding that would put him, rather than George Bush, on teh hook.

  13. orionATL says:

    @orionATL:

    one question occurs to me:

    what was the first rendition, seizure, kidnapping, torture that the cia conducted after sept 17, 2001?

    how long did it take the cia to understand the mon applied to their activities, including illegal activities?

    was the mon designed specifically for the cia? for dod and cia?

    or was it a blanket authorization for any u.s. govt organization?

  14. rg says:

    @emptywheel
    “It was set up to ensure that no one had accountability.”

    I didn’t mean to denigrate the importance of understanding the underlying structure, nor to imply that your work lacks value. My remark was intended to emphasize that pinning the “rogram-pay” on the “resident-pay” is just one step in understanding why these actions took (and are taking) place. In a functional analysis of behavior, one always is asking why some event occurs. If the answer seems to come out as evasion of accountability, then it’s helpful to ask why that is done. It would seem that the possibility of the ugly head of an unaccountable authoritarian regime rises, rather than a simplistic desire by a couple of individuals to stay out of jail.
    And, yes, I do find it interesting to learn that these rogram-pays have an interconnected history, and thus a kinship- a kinship that screams out for some oversight.

  15. orionATL says:

    @orionATL:

    i guess what i’m trying to get at is:

    it would say something important about the cia’s understanding of the intent of the mon, as well as bush/cheney’s intent,

    if the cia had gone right to work at least planning, or maybe even executing without prior planning, a kidnapping/rendition, airplane chartering, negotiating e.g., with poland, romania, thailand.

    in sum, how soon did the cia start leaving tracks viz illegal actions.

  16. rugger9 says:

    @emptywheel: #15
    The constitution, sure, but not the treaty. Unfortunately that is how justice will be done in our current America, by someone else. Just like the Murdoch leaks, hacking, etc. that no one hears about on this side of the ponds [there’s press in Australia, too]. We used to be better than that.

  17. jerryy says:

    @emptywheel: “And yet one reason O presumably doesn’t want it officially acknowledged is because he’d have to write his own finding that would put him, rather than George Bush, on teh hook.”

    Do you really think that will hold up?

    http://www.thirdworldtraveler.com/CIA/Pinochet_Bush_Rendition.html
    http://law2.umkc.edu/faculty/projects/ftrials/nuremberg/Alstoetter.htm

    p.s. @8 “It’s a Cheney jerry-rigged Get Out of Jail Free card that may not withstand scrutiny…”

    Honest I did not rig it! 8-) If I wuz gonna rig it, I would have done it the easy, probably legal way… declare martial law.

  18. lefty665 says:

    @orionATL:

    “could the administration have already set the invasion of iraq as a goal prior to the wtc strike?”

    Paul O’Neill (Duhbya’s first Secretary of the Treasury) reported that when he walked into the first cabinet meeting in late January 2001 he was astonished the talk was about when we would attack Iraq, not if.

    You might ask the Google about the “Project for the New American Century” and “Neocons”. Toppling Saddam was high on their list of things to do. The Israelis laughed them out of town when they were approached. The confluence of 9/11 and the opportunity to let Duhbya play war gave the neocons the opening they needed to achieve a longstanding (means “long before” 9/11″) goal.

    Bamford’s “A Pretext for War – 9/11, Iraq, and the abuse of America’s intelligence agencies” 2004, remains as good a guide as you will find about how they did it.

    Please read it. Answers to several of the questions you have asked are in there. Today there are other places to find much what he lays out, and more. However, Bamford’s got it on the nose, and it’s all in one spot. It is worthwhile seeing how much of what happened was public knowledge before the 2004 election, even if mostly forgotten by some today.

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