“The Gloves Come Off” Memorandum of Notification

Operational flexibility: This is a highly classified area. All I want to say is that there was “before” 9/11 and “after” 9/11. After 9/11 the gloves come off.

-Cofer Black, 9/11 Congressional Inquiry, September 26, 2002

When Cofer Black, the main author of the plan laid out in the September 17, 2001 Memorandum of Notification that appears to be at issue in the FOIA dispute between the CIA and White House and the ACLU (post 1, post 2, post 3, post 4, post 5), testified before the 9/11 Congressional Inquiry, he described the expanded operational flexibility CIA’s counterterrorism efforts gained after 9/11 by saying “the gloves come off.”

As this post shows, the legal means by which “the gloves come off” was the MON in question. Thus, rather than referring to the MON by its date, perhaps the best way for us to think of it is as the “Gloves Come Off MON.”

Before we get into what the MON did, here’s what the National Security Act, as amended, says such MONs are supposed to do. The NSA requires the President to notify congressional intelligence and appropriations committees (or, in rare cases, the Gang of Eight) of any covert operations he has authorized the CIA to conduct. Some important excerpts:

SEC. 503. [50 U.S.C. 413b] (a) The President may not authorize the conduct of a covert action by departments, agencies, or entities of the United States Government unless the President determines such an action is necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States, which determination shall be set forth in a finding that shall meet each of the following conditions:

(1) Each finding shall be in writing, unless immediate action by the United States is required and time does not permit the preparation of a written finding, in which case a written record of the President’s decision shall be contemporaneously made and shall be reduced to a written finding as soon as possible but in no event more than 48 hours after the decision is made.


(5) A finding may not authorize any action that would violate the Constitution or any statute of the United States.


(d) The President shall ensure that the congressional intelligence committees, or, if applicable, the Members of Congress specified in subsection (c)(2) [the Gang of Eight], are notified of any significant change in a previously approved covert action, or any significant undertaking pursuant to a previously approved finding, in the same manner as findings are reported pursuant to subsection (c).

As used in this title, the term ‘‘covert action’’ means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include—

(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;

Basically, the MONs are supposed to provide an up-to-date written notice of all the  potentially very embarrassing things the CIA is doing. And given that MONs cannot authorize unconstitutional or illegal (within the US) actions, it should impose some legal limits to covert operations.

Dick Cheney, in a 1989 speech complaining about Congressional overreach in foreign policy (Charlie Savage just posted this), described how this requirement to inform Congress of covert ops provided a way for Congress to oppose such actions by defunding any ongoing ones.

The 1980 law [requiring notice] did not challenge the President’s inherent constitutional authority to initiate covert actions. In fact, that law specifically denied any intention to require advance congressional approval for such actions.


Any time Congress feels that an operation is unwise, it may step in to prohibit funds in the coming budget cycle from being used for that purpose. As a result, all operations of extended duration have the committees’ tacit support.

That’s the understanding of the limitations MONs might impose on Presidents that Cheney brought to discussions of the Gloves Come Off MON.

Bob Woodward provides an extensive discussion of what George Tenet and Cofer Black requested in this MON in Bush at War.

At the heart of the proposal was a recommendation that the president give what Tenet labeled “exceptional authorities” to the CIA to destroy al Qaeda in Afghanistan and the rest of the world. He wanted a broad intelligence order permitting the CIA to conduct covert operations without having to come back for formal approval for each specific operation. The current process involved too much time, lawyering, reviews and debate. The CIA needed new, robust authority to operate without restraint. Tenet also wanted encouragement from the president to take risks.

Another key component, he said, was to “use exceptional authorities to detain al Qaeda operatives worldwide.” That meant the CIA could use foreign intelligence services or other paid assets. Tenet and his senior deputies would be authorized to approve “snatch” operations abroad, truly exceptional power.

Tenet had brought a draft of a presidential intelligence order, called a finding, that would give the CIA power to use the full range of covert instruments, including deadly force. For more than two decades, the CIA had simply modified previous presidential findings to obtain its formal authority for counterterrorism. His new proposal, technically called a Memorandum of Notification, was presented as a modification to the worldwide counterterrorism intelligence finding signed by Ronald Reagan in 1986. As if symbolically erasing the recent past, it superseded five such memoranda signed by President Clinton.

Woodward describes other things included in Tenet’s request:

  • Providing hundreds of millions to “heavily subsidize Arab liaison services,” effectively “buying” key services in Egypt, Jordan, and Algeria
  • Equipping Predator drones with Hellfire missiles for lethal missions to take out top al Qaeda figures
  • Working with the Northern Alliance in Afghanistan (in the earlier discussions, Woodward made clear that Rashid Dostum, whose massacre at Dasht-i-Leili we subsequently covered up] was the key figure Black had in mind)
  • Conducting covert ops in 80 countries, including the use of breaking and entering, and lethal force (what Jane Mayer, in The Dark Side, refers to as paramilitary death squads)
  • Working with Libya and Syria (and also, in the context of Afghanistan, Uzbekistan)

Mayer adds to Woodward’s list that it,

authorized the CIA’s officers to break and enter into private property, and to monitor the communications and financial transactions of suspected terrorists, even inside the United States when necessary, as well.

As Woodward describes Bush signing the MON on September 17,

He was approving every one of Tenet’s request for expanding the role of the agency, rejecting most of Rumsfeld’s efforts to scale back.

So even with respect to what the MON explicitly approved, it included the use of lethal force, the outsourcing of torture to partner liaison services like Egypt, the use of drones, paramilitary attacks on targets in 80 countries, and broad surveillance, potentially in the US.

But more importantly, as Woodward describes it, the MON authorized the CIA to engage in these general activities without having to come back for a new finding. Jane Mayer elaborates what this meant:

To give the President deniability, and to keep him from getting his hands dirty, the finding called for the President to delegate blanket authority to Tenet to decide on a case-by-case basis whom to kill, whom to kidnap, whom to detain and interrogate, and how.

The legal fight between the Administration and the ACLU is fundamentally about whether–given the way Tenet constructed his Interrogation Guidelines–Bush (and now Obama) could sustain that claim of plausible deniability.

There is another issue with the Gloves Come Off MON as well: the way it was used did not comply with the NSA. For example, the notifications of significant changes (such as that CIA had started torturing detainees itself) were not in written form. Cheney kept notifications at the Gang of Four level that prevented anyone in charge of appropriations from knowing what they were paying for–though in the case of the illegal wiretap program, they kept doing the activity after Congress had defunded it (Congress at least believes the briefing got better under Obama subsequent to Leon Panetta revealing the assassination program, though obviously the Awlaki killing belies that). And in the case of torture–which, they’ve always said, was intended to collect information rather than create false confessions–should not have been a covert op in the first place.

But those are the specifics. The more general lesson about the Gloves Come Off MON is that it turned the CIA and those it partnered with into an entity with almost boundless authority to operate outside normal rule of law and oversight. And this is the legal authorization–not the AUMF or the OLC memos–behind most of the ugliest things our country has done since 9/11.

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.

95 replies
  1. MadDog says:

    Given President Obama’s chief counter terrorism advisor John O. Brennan’s previous career history in the CIA and other US national security positions, I have zero doubt of his deep involvement with the development and implementation of the Gloves Come Off MON:

    1996 – “CIA station chief in Riyadh, Saudi Arabia when the Khobar Towers housing complex was blown up by a truck bomb and 19 U.S. servicemen were killed.”

    1999 – Chief of staff to CIA Director George Tenet.

    2001 – Deputy executive director of the CIA.

    2003 to 2004 – Director of the newly created Terrorist Threat Integration Center “…an office which sifted through and compiled information for President Bush’s daily top secret intelligence briefings…”

    2004 and 2005 – Director of the CIA’s National Counterterrorism Center.

    If the real depths of the Gloves Come Off MON were ever to become public, one set of bloody fingerprints found would be that of John O. Brennan.

  2. Frank33 says:

    The gloves came off, against the Constitution and the American people. The CIA stopped numerous investigations that had figured out Al Qaeda was a terrorist gang, headed by a CIA agent Usama Bin Laden. Then let us state the obvious. Cofer Black failed, FAILED BIG TIME to protect the American people. He should have lost his job. Or maybe Cofer was helping Al Qaeda. Somebody in the Intelligence Community was helping terrorist Ali Mohamed stay out of jail.

    Then they invent Al Qaeda franchises here there and everywhere. Cofer Black and his fellow conspirators conspire with Pakistan, ISI to give us False Flag Ops at least once a year. The terrorists and Bin Laden’s financial networks are allowed to continue. Probably because the CIA uses the same networks for its assassin contractors.

    But Cofer Black, Torturer, will probably not have any European vacations. He might be put in jail for torture.

  3. rugger9 says:

    No wonder we can’t seem to win the hearts and minds, we’re no better than every other empire in the region: no matter what our laws actually say, we’ll do what we want anyhow.

    Brennan will not be looked at kindly by history when all is revealed.

  4. Eureka Springs says:

    “The more general lesson about the Gloves Come Off MON is that it turned the CIA and those it partnered with into an entity with almost boundless authority to operate outside normal rule of law and oversight.”

    Those who partnered with it… meaning blanket immunity/impunity for just about anyone CIA will claim?

    Any of the 15 other intel agencies?
    Corporations of all sorts, including private militia such as Blackwater types? Banks? Ghost plane companies, pilots, all sorts of torture rendition profiteers and so on?
    Would there be ANY limit to this?

  5. JTM says:

    The bit you posted about “activities the primary purpose of which is to acquire intelligence” not being “covert operations” makes me wonder if someone can argue that a lot of the restrictions and/or requirements for covert operations don’t apply to anything that they were doing on the grounds that it was all about acquiring intelligence. Could you please explain what that section means. It seems important to you, too, as you included it in the post. Thanks.

  6. Frank33 says:

    The gloves are coming off against the lame stream main stream. USA Today is facing the Wrath of the Pentagon. Imagine actual journalists at USA Today being Journalists. These Journalists revealed the Pentagon buys propaganda. And the Pentagon attacks those who reveal the Pentagon sells wars using taxpayer dollars.

    Clumsy computer flame wars. This is what the useless feeders who go to the Pentagon’s Info War College learn. Our info warriors are going on the Twitter to destroy American citizens. War bitch. get some.

    The first sign of any strange dealings was on January 7, USA Today said, when a fake website TomVandenBrook.com was created. This was just days after Vanden Brook contacted private contractors used by the Pentagon in Iraq and Afghanistan to carry out “information operations” or “info ops” – propaganda designed to support US war aims.

    On February 29 USA Today published the results of the two journalists’ investigations which suggested that the Pentagon had handed millions of dollars to private contractors to carry out dark arts, for very little measurable return. Indeed, the paper reported that one of the main contractors had fallen $4m behind in paying their taxes.

    Both fake websites and the fake Twitter and Facebook feed have now been taken down. So too has a Wikipedia entry for Vanden Brook dated February 8 from a previously unknown Wikipedia user that attempted to question his journalistic credibility

  7. MadDog says:

    From pages 175 and 328 of The Hunt for KSM:

    “…By Friday, September 14, Tenet and Cofer Black, the chief of the Counterterrorist Center, had drawn up a comprehensive plan to take out Al Qaeda and its Taliban protectors in Afghanistan as the opening shot in a global intelligence-gathering, kill-or-capture campaign. Tenet, Black, and deputing director John McLaughlin briefed the President and his War Cabinet the next day at Camp David on their plan, which the titled “Destroying International Terrorism.”⁸…

    …By the end of the weekend, Bush handed the “get bin Laden and Al Qaeda” portfolio to the CIA…

    …8. Suskind, The One Percent Doctrine. Jane Mayer also includes a detailed description of Black’s proposals in The Dark Side (28-43)…

    And from page 38-39 of Jane Mayer’s The Dark Side:

    “…Late in the afternoon of Sunday, September 16, Black emerged from his self-imposed exile in Langley to the the project he had been working so hard on all week to the allied British intelligence officials who were still gathered in Washington…

    …Black brought a draft of a proposed new top-secret presidential “finding” that he and the CIA lawyers had been hammering out all week. Formally called “Memoranda of Notifications” in the Bush White House, or MONs, they were legal memos detailing proposed covert actions, all of which required presidential authorization, according to laws that had been in place since the Agency’s founding in 1947. Black’s proposed new finding was an amalgamation of years’ worth of thinking about all the powers the Agency might like to exercise in its fondest dreams. Most of the notions had been considered politically untenable before September 11.

    The proposed finding included the inauguration of secret paramilitary death squads authorized to hunt and kill prime terror suspects anywhere on earth. A week earlier, these deaths would have been classified as illegal assassinations. Under the new legal analysis, such killings were sanctioned as acts of national “self-defense.”

    Black’s proposal was nothing less than a global plan for a secret war, fought not by the military, with its well-known legal codes of conduct and a publicly accountable chain of command, but instead in the dark by faceless and nameless CIA agents following commands unknown to the American public. All new covert actions required congressional notification, but under the Bush Administration’s interpretation, this would be pared down to a bare minimum of four elected representatives, none of whom were allowed to reveal publicly what they had learned. This war, as Bush later said, would be “invisible.”

    Black’s proposal was reportedly the most aggressive, ambitious covert-action plan seen since the Cold War, maybe ever. It spanned some eighty countries in which the Agency thought terrorist or their supporters were active. To give the President deniability, and to keep him from getting his hands dirty, the finding called for the President to delegate blanket authority to Tenet to decide on a case-by-case basis whom to kill, whom to kidnap, whom to detain and interrogate, and how…”

    (My Bold)

  8. emptywheel says:

    @Eureka Springs: Thats something I didn’t cover from the NSA. It also says you need to include notice about what contractors you’re using and what international partners you’re working with.

    Given how little else notice was done, I suspect they could be in trouble.

    But the JSOC guys involved are probably safe.

  9. orionATL says:

    ew –

    this essay is an extraordinary tour de force of synthesizing knowledge,

    of making what happened on sept 17 and its consequences intelligible and available to citizens, including

    pre-sept 17 historical background relevant to the mon,

    post sept 17 events deemed authorized by the mon, and

    the putative limitations of the mon (which were violated sooner than later).

    the headline makes it memorable;

    the final memorable paragraph leaves a reader surprised and stunned.

  10. orionATL says:

    a couple of inferences i draw;

    – i unfairly blamed, that old devil-man, dick cheney, for the administrative impulse that generated the mon when in fact, it was cia generated.

    – i have been assuming that the the cia was instructed by cheney-bush whitehouse to torture, kidnap, etc.

    in fact, the cia were way in the lead – pushing for a blank check from bush that they surely understood would permit them to break international law as well as the laws in many countries, not least the u.s.

  11. JTM says:

    Orion –

    Don’t let Darth off the hook yet. Just because the story right now is that the CIA asked for the memo doesn’t mean it started with them.

    With that said, the best part of what ew is digging up (for me, at least) is how the OLC stuff appears to be after-the-fact butt-coverage that happened much later than what mattered.

  12. orionATL says:


    good points.

    darth is, if nothing else, a master bureaucrat – one of the best i’ve ever seen (to give old devil-man his just deserts).

  13. Brian Silver says:

    Marcy, I know you’ve covered this somewhere but it may be relevant to add that the MON of Sept. 17 was not necessarily considered sufficient cover to agents and agencies that undertook covert actions pursuant to the new authorization. As an insurance policy, there was a provision in the Military Commissions Act of 2006 that granted retroactive immunity to any agent or official who may have conducted illegal actions that were authorized by the President. Thus, not just the President and the Gang of 4 (or 8) but the Congress as a whole retroactively signed off by holding those who acted based on the President’s authorization immune from legal liability (in the U.S.) for their actions.

  14. klynn says:

    @Brian Silver:


    Great reminder and quite important. There has to be a point where there is a hole in the immunity from liability. Just because “it (Act of 2006) says so,” does not mean it is…but “they”(power holders) want us to believe “because I say so it is so.”

  15. Brian Silver says:

    I think the “hole” could come in challenge to the constitutionality of the “reverse ex post facto” (or amnesty) law. Not on grounds that it was ex post facto but on grounds that it is so vague, given the secrecy of the MON itself, that it would seem to give cover to any and all illegal actions that the agent considered at the time to be a lawful order. And someone who was harmed by that action could still be entitled to civil compensation, even if the agent is held safe from prosecution under U.S. criminal law.

    My speculation here, however, is probably best addressed by a legal expert.

  16. emptywheel says:

    @Brian Silver: Oh, I agree with that. Congress as a whole has covered the collective ass of the torturers and therefore, unless something happens internationally, Bush.

    Just on torture alone (there are more issues, but let’s stick with torture), the CIA had a problem when DIA said they believed Ibn Sheikh al-Libi’s claims of an AQ-Iraq link were coerced in Egyptian (one of those intelligence services we “bought” under this MON) starting in February 2002. Then, FBI says the mock burial threatened with Abu Zubaydah. almost simultaneously the Brits telling us Binyam MOhamed’s treatment was, at least, cruel and unusual.

    So that elicited the first round of OLC memos.

    The IG report raised problams with our compliance with CAT. Bradbury’s memos were supposed to address them, but people like Philip Zelikow and Gordon England kept warning they didn’t. Thus the MCA.

    And who knew? Ultimately all they needed to do was elect a PResident who didn’t look back?

  17. Brian Silver says:

    We’re a very forgiving society, eh? Add to this the amnesty to the telcoms for giving the NSA access to the trunk lines and other communications.

  18. emptywheel says:

    @Brian Silver: I guess that’s one thing I’d love to push out of this. It is unthinkable to the WH and Dems that we reframe teh WOT (the GOP wanted to make it worse with a new AUMF, which frankly made sense in theory but would have been lousy in their execution of it). And presumably it is also unthinkable for Obama to redo this MON–witness how he tried to sustain the pattern of not briefing COngress after the assassination squads were revealed. But then, perhaps by design, that means Congress continues to excuse the Executive for any problems that arise right out of the structure of this MON.

    It’s clever the way thsi DC place works.

  19. der says:

    Cofer Black:

    “America’s Holy Warriors” – Erik Prince is “the secretive, mega-millionaire, right-wing Christian founder of Blackwater. Prince “champions his company as a patriotic extension of the U.S. military. His employees, in an act as cynical as it is deceitful, take an oath of loyalty to the Constitution.

    “A number of senior CIA and Pentagon officials have taken top jobs at Blackwater, including firm vice chairman Cofer Black…

    Also, Silverstein wrote in September 2006, “there’s talk at the agency that Blackwater is also aggressively recruiting José Rodriguez [note: Rodriquez, destroyer of interrogation tapes, works for the National Interest Security Company (an IBM data mining company among other things)]

    Recent Cofer Black start-up and merger, Total Intelligence Solutions, LLC, is a merger of three companies, The Black Group, The Terrorism Research Center, Inc. and Technical Defense. TIS very well may fall outside the legal corporate domain of Blackwater, however two of the top executives at TIS, Cofer Black and Enrique Prado still hold positions at Blackwater, and Robert Richer [who served under Rodriquez at the CIA] recently left his position at Blackwater to take on responsibilities at TIS. As well, it should be noted that one of the three companies merged to create TIS, The Terrorism Research Center, is owned by Blackwater founder Erik Prince. http://www.sourcewatch.org/index.php?title=Xe

    Dangerous, delusional men. Real Americans fighting Satan in his many disguises (communism, socialism, liberalism….radical islam) & preparing the way.

  20. scribe says:

    Let’s be clear about a couple things wich no one’s said yet.

    1. The structure being revealed by these posts, of the MoN and CIA starting its rampage about that time, gives the lie to the whole construct Bushie and his crew laid before the public. This was never a case of “everything was cleared by the lawyers” in advance. No, much to the contrary, the agency went and did something and, only when someone leaked something or the obvious became so undeniable that something had to be said did they trot out “the lawyers said it was OK” to justify it. Constructing memoranda post hoc wasd the art form.

    To that end, Addington was not only a prime mover in managing the compartmentalization of information and tasking, but also a tool of those deciding when and what needed justifying in the first place. Yoo, Goldsmith and the rest at OLC? Just a bunch of trained little monkeys brought into government to do exactly what they did: implement the skills of sophistry (which they had in abundance) to provide a post hoc cleanup of the mess the deciders made. Glorified janitors, in other words.

    2. In placing the MoN under Bushie’s nose to sign, let him wash his hands of deciding, and free the CIA of even the most rudimentary strictures of accountability, what we had here was a cabal of proteges of the First President Bush – from his days in and heading CIA and as VP (doing much the same to Reagan) – doing pretty much the same thing to the Second Bush as they had done to Reagan. The Agency would decide what it wanted to do, put it under Ronnie’s nose, tell him it was Good And Pure And Right and he’d sign without reading. The W iteration absolved the Agency of even going over for that ritual.

    In short, then, what Black and the NoM effected was a coup d’etat carried out by the CIA against the government of the United States with the active connivance and eager participation of the officials in office who could have and should have been able to stop it. The CIA had plenty of experience in toppling and replacing governments around the world and it should come as no surprise that they had studied, figured out how, and pulled off the same at home. Indeed, they and their predecessors in the Ivy Elite had been working on the very problem of democracy (i.e., how to prevent it) at least since their fathers and grandfathers had tried to overthrow the Roosevelt administration in the Businessmens’ plot of the early 30s.

    On the one hand, this MoN and freeing the CIA from any fetters at all was the “inside” part of their approach to restoring the US to the model they so very much liked – a plutocratic aristocracy ruling over a mass of plebs given the appearance, but not reality, of democracy. The “outside” part are things like the Federalist Society – changing the rules of the game from what was, to what they want, so that the system being built has not only the raw power of the state behind it but also the appearance of legality.

    3. I’ve heard it said any number of times that “the last Democratic President who acted like a President was JFK and look what it got him”. It’s not an unfair analysis. Obama’s doubtless well-aware of that history. Whether he got dragged kicking and screaming to going along or was willing puts him, at best, in the position of someone who got fucked and now complains about it. He wanted to be in the room and knew the price.

    Brennan plays the part much like that which would have been assigned to Smedley Butler – Secretary of General Affairs – in the Business Plot. http://en.wikipedia.org/wiki/Business_Plot Everything – at least in the most-important field of counter-terror – goes through Brennan and what Obama sees is what Brennan wants him to see. The big difference betwen now, and 1933-34, is that this time around it’s not being done in a hurried, ad hoc. As EW noted above, the MoN was the product of long study and analysis on exactly what CIA needed and how to get it. And, it would seem, Brennan was chosen precisely because he lacked Butler’s conscience and had proven that over years of service.

    So, Obama gets what he wants – to be President – and the CIA gets what it wants – to run things for its own benefit. Modus vivendi: no open-topped motorcades through Dallas, no prosecutions, lots of very profitable government contracts all around.

    Joe and Jane Sixpack get the same treatment as in Obama’s economic plan: “Nobody gets hurt. By the way, you’re Nobody.”

  21. lefty665 says:


    “(to give old devil-man his just deserts)”… and without dessert or water either…

    @morionATL 10-12. You keep looking for simple, easy, tied up with a bow explanations, this is the bad guy… flipping from Cheney to CIA to, to…

    It ain’t that easy or simple. USG is big and ponderous, it takes a lot to make it change course.

    There have always been people in the departments and agencies who are ready to grind their axes or do whatever it takes to curry favor and advance careers. Black’s background, the gung ho guys in CIA’s Directorate of Operations lust for action over thought (mottos: “No girls need apply”, and “Screwing up work done by real intelligence since OSS days”) may be the worst of all possible worlds.

    But, the mass of career folks are usually the counterweight to the political waves that periodically wash through D.C. (B employees/Bheres – “We were here when you got here and we’ll be here when you’re gone).

    However, the neocons were particularly virulent. In addition to looney tunes visions of hegemony, they had folks like Cheney and Rumsfeld with experience in government. Cheney’s hatred of oversight and separation of powers goes back to his days in the Nixon administration.

    9/11 gave them all, idiotlogues, politicians and career opportunists alike, the opportunity to dust off every dingbat wish list they’d ever had and turn it into policy and law. They wrapped themselves in the flag and a shocked nation rallied around, especially the Dems who were terrified of being painted as insufficiently anti-terrorist (in addition to being mostly spineless already).

    They also had experience in government that enabled them to politicize departments/agencies, play on career ambitions and lean on those who resisted. In addition, throughout gov’t employees accepted the initial official propaganda at face value and got on board to help protect the nation from terrorism.

    JTM at 13’s got it right. It is wonderful that the covers are finally being peeled back on some of the first and worst of the enabling documents, and that folks like EW are providing context and analysis. Our hope can be, that once enough things that cannot stand the light of day are exposed, our nation can right itself.

    However, before you get your hopes up, remember that O’s administration has not made things better. In fact it has gotten worse, much worse. The Duhbya era crap is still in place, and we’ve had a decade to re-institutionalize the Bheres. Furthermore, while shielding the perps, they’ve aggressively gone after people who have stood up to expose wrongdoing. It is now bi-partisan and half a career for people who came into government after 9/11.

    @morionATL 12 “let’s see if anyone in the congress decides to attend to this troubling synthesis.”

    Just exactly who in Congress do you think will rise up and why?

  22. orionATL says:

    one things this essay of ew’s does for certain is

    make clear that a long series of efforts by investigative journalists, authors, and analysts such as ew, together with efforts of organizations like the aclu, stretching over a decade

    have succeeded in lifting the fog of obfuscation that surrounded the secret activities the us. gov’t initiated after sept 11, 2001.

    for all the years of doj legal machinations, the outline of what happened is now clear.

    that is a tremendous benefit to our society because it can form the basis of reform of both our gov’t’s secrecy rules and secret operations.

    there are many reasons to seek this reform, but chief among them are

    – damage to our constitution,

    – easy tolerance of extremely serious criminal activity on the part of the cia, and

    – lack of control/oversight over expensive or foolish cia programs which undermine our foreign policy goals, while providing minimal additional national security.

  23. emptywheel says:

    @der: One of the things Mayer makes clear is that a few days before Tenet and Black put together their wishlist, they demanded Bush promise no investigation into CIA “failures,” which is always taken just to be about Midhar but we now know has to do with overestimating their ability to run what they thought were Saudi double agents. So not only do we not get a real investigation into Saudi role in 9/11, but we also never learn how CIA had ties to the Saudis who had ties to the hijackers.

    So the mutual death grip that this Gloves Off embrace set off–with both relying on the other to empower them to break all laws–is built on top of the mutual fuckup on the part of both to prevent 9/11.

  24. emptywheel says:

    @scribe: Two things I may come back to in separate posts, just so I can stretch this series out forever (just joking) is:

    1) Remember the Sy Hersh description of Cheney convening an Iran-Contra lessons learned meeting (see this post and this one)? Remember, Iran-Contra was all about Presidential Findings (which is why Cheney discussed it in that speech I linked above). Well, that lessons-learned meeting would have been at precisely the same time as this MON was crafted. Precisely the same time. (Yeah, that one is worth a post on its own).

    2) Remember that Obama is still relying on this same MON. Which means that, among other things, he didn’t sign Awlaki’s death absence-of-warrant, Bush did. No wonder the BUshies have criticized Obama for his hypocrisy on CT policy: He’s engaging in the same kind of policies, but leaving Bush, not himself, at risk for it.

  25. yellowsnapdragon says:

    @der. Wasn’t Cofer Black a player in the Abramoff misdeeds and somehow the nexus between OVP and the Indian tribe swindling? I keep trying to figure out why Cofer Black always makes me think of Abramoff (and OVP).

  26. klynn says:

    “So not only do we not get a real investigation into Saudi role in 9/11, but we also never learn how CIA had ties to the Saudis who had ties to the hijackers.

    So the mutual death grip that this Gloves Off embrace set off–with both relying on the other to empower them to break all laws–is built on top of the mutual fuckup on the part of both to prevent 9/11.”

    One part of me embraces these thoughts. Another part of me asks,”Was 9/11’s prevention intended?” For the Executive, the event held so much “power promise.”

    Hope you expand the above quote.

    PS: I miss your timelines box.

  27. scribe says:

    @emptywheel: RE the Iran-Contra lessons learned, I have to say that was in the back of my mind as I wrote the comment. What we are seeing here is just the latest branching and flowering of a multigenerational project by what I called the Ivy Elite.

    Some others might call them The Establishment, the 400 families who run America (there was a book listing them and how, once), you name it. It’s not a “Conspiracy” in practically any sense of the word – not the legal sense and not the common sense. Rather, it’s a loosely defined group – class – of people with commonly-held beliefs and a more-or-less common objective. The latter is establishing and maintaining their irrevocable hegemony over the US and its economy (and as much of the world’s as possible) for the profit of themselves and their descendents. Curiously, their beliefs are more-or-less socially-liberal (or at least tolerant) in the realm of personal affairs. There are the gays, the pervs, the drunks and so on among them, and they all get a lot of room in the personal arena so long as they don’t screw up the more important – making a profit and pushing the class agenda.

    We all knew that. What we had happen in the immediate aftermath of 9/11 – and reflected in the MoN and all its manifestations – was an extraordinary example of chance favoring the prepared mind. In many respects, the success of the 9/11 attacks was a purely random event. A gazillion things had to go one way and not another for all the things to happen, which did happen. Whether or not the CIA, Cheney, Bush and the rest of them didn’t see the threat coming from AQ or recognized it and ignored it – loading the dice in favor of the attack coming to fruition, so to speak – what is clear is that they had been spending most of their adult lives in fantasy rehearsals. The rehearsals may have been cast as war games or policy papers or whatever, and may have been overlain with one or another dissimilar conflict scenario, but they were all rehearsal for just this kind of opportunity: a sudden, shocking event (dead innocents’ bodies preferable, the more the better) that would give those in government the opportunity to grab for themselves as much power as they could carry.

    I mean, do you think Viet Dinh came up with the encyclopedia-length so-called USA PATRIOT Act in the few weeks between 9/11 and Leahy getting anthrax in his mail?

    Of course not. It had been under work for probably years, with broad objectives defined and paths to achieving them being worked through. A lot of legal research, tweaking, editing, thought, conferences and negotiation doubtless went into that document to make it what it is, before it was even a draft good enough to see the light of day. Every decision that came down even tangentially touching on its subject matter had to be examined, researched, and its effect (if any) accounted for. Converting a semi-functional republic into a plutocrats’ dictatorship (without too much bloodshed – don’t want to spook the natives into seeing what’s going on) is hard work and requires bright minds.

    But, these are the folks who go into government when someone notices their potential to be a real shit in service of the larger class interest and gets them a job. The more audacious and successful at being shits that they are, the more they get moved up the ladder of patronage. When administrations change, they move out and make some money – not all of them come from old money and even those that do have to prove they have the balls to pull the kinds of stunts this work requires. Working in “the private sector” gives them ample opportunity to make sure their kids’ college is paid for and they’ve lined up grafting opportunities for the next iteration of jobs and the iteration after that.

    But the ultimate objective of the whole project remains, as I noted earlier, replacing a sorta-functional democracy with the illusion of one atop a plutocrats’ dictatorship. And in the context of both a great opportunity (the shock of 9/11) and prepared minds looking for such an opportunity to effect their objectives, a lessons-learned meeting to go over the last iteration of their assault on the Constitution would be the most obvious and necessary of steps.

  28. orionATL says:


    in such siiuations i find the spellckecker a most useful scapegoat. :)

    as in:

    “oh, thanks.

    damn spellchecker.”

  29. lefty665 says:


    “damage to our constitution…”

    morionATF, this cuts the heart out of your outrage. Even if you can’t help being inane, how about showing a minimum of respect by figuring out the caps key for Constitution? You’ve used it in your moniker, so you apparently know it exists.

    [email protected],”that is a tremendous benefit to our society because it can form the basis of reform of both our gov’t’s secrecy rules and secret operations.”

    Just who do you expect to do this reform, and how? You have suggested Congress, but not identified any congress people who might actually step up and do something.

    It ain’t going to come from Repubs or Dems, they are both heavily invested in the status quo. Nothing on the election trail so far indicates that anyone besides Ron Paul thinks it’s an issue.

    Are we reduced to encouraging the Teabaggers who seem ready to deconstruct it all? Maybe your lowercase “constitution” is a baby step towards helping them past the Declaration of Independence to what it means to actually govern.

    Understanding that the fundamental Constitutional breach took place by executive order, in secret, less than a week after 9/11, and that it remains in effect more than a decade later, across a change in administrations, still in secret, is profound. That places an awful lot of downstream events in a different perspective.

    How does a democracy recover from a fundamental executive branch betrayal when the Lege won’t stand up, and the Judiciary has shown remarkable deference to the unitary executive?

    Are there historical examples we can look to for guidance? Or, are we on our own in this wonderful new world?

    Feel free to speak freely right here (and everywhere else 24/7/365) into the data motherlode on Beef Hollow Rd.

  30. orionATL says:


    you mention the conservative legal scholar viet dinh, a high-ranking dep’t of justice official from 2001-2003 often described as the chief architect of the usa patriot act.

    you would know this, of course, but since i’ve been keeping score on this matter i will note for other readers:

    viet dinh is a magna cum laude graduate of harvard law school, 1990.

    see: http://en.wikipedia.org/wiki/Viet_D._Dinh

  31. MadDog says:

    @emptywheel: Speaking of briefing Congress (or not as the case may have been), I’ve squirreling around looking for additional nuts in various released documents.

    The very first notification entry (page 3) in the CIA’s attempt to document their Congressional notifications for the CIA’s Rendition, Detention and Interrogation program in this document (118 page PDF) appears to show that the CIA waited until October 3, 2001 before making a Congressional notification.

    I contrast that 10/03/01 date Congressional notification date with the 09/17/01 Gloves Come Off MON signature date.

    I even contrast that 10/03/01 date Congressional notification date with the 09/16/01 date when Cofer Black apparently used a draft of the Gloves Came Off MON to brief the in-town British intelligence heads.

    I leave it to everyone’s own interpretation as to just where Congress fit into the Bush/Cheney regime’s view of the hierarchy of power.

  32. orionATL says:


    is there any way to know whether the cia action(s) about which congress was notified were planned for some future time, or

    were actions the cia had already taken and now could fess up to?

  33. MadDog says:

    @MadDog: Again from that released CIA document (118 page PDF) on their Congressional notifications for the CIA’s Rendition, Detention and Interrogation program, from page 30 in a CIA-produced Memorandum for the Record describing a July 13, 2004 CIA briefing by CIA Deputy Director for Operations James Pavitt, CIA General Counsel Scott Muller, and CIA Inspector General John Helgerson to HPSCI Chairman Porter Goss (R) and HPSCI Minority Ranking Member Jane Harman (D):

    “…Rep. Harman noted that the [redacted – about 25 characters – perhaps Memorandum of Notification?] did not specify interrogations and only authorized capture and detention. She asked whether we had questioned detainees before the [redaction – approx 24-25 characters – MON again?] The GC said yes, but no enhanced techniques had been used before Abu Zabayda and there was [redaction – long sentence]…”

  34. MadDog says:

    @orionATL: I’m thinking that the ad hoc process of Congressional notifications that the Bush/Cheney regime employed tended toward the latter. That is, if they notified Congress at all.

  35. MadDog says:

    @MadDog: My takeaway from this is that the CIA may have kept the “Interrogation” component of the Gloves Come Off Memorandum of Notification as a separate codicil/appendix, and if they briefed Congress at all on this aspect, it was only to the Gang of Four, the Majority and Minority leadership of both houses, rather than to the Gang of Eight which would have included the Majority and Minority heads of the Intelligence Committees.

    It sure seems that even at that late date of the July 13, 2004 CIA briefing, Jane Harman as HPSCI Minority Ranking Member was unaware that the Gloves Come Off Memorandum of Notification included delegation of authority to the CIA for “interrogations”.

    Her own statement in the CIA’s Memorandum for the Record seems to clearly confirm this.

  36. orionATL says:



    i keep hoping i’ll come across info indicating cia started up immediately after mon of 9/17

    or were doing illegals even before that (and so had a stronger motive).

  37. MadDog says:

    And lest anyone be in any shadow of a doubt whatsoever about the Office of the Vice President’s explicit involvement in the CIA’s “interrogation” tactics, from page 35 in that released CIA document (118 page PDF) in another CIA Memorandum for the Record detailing a briefing on February 4, 2003 to SSCI Chairman Pat Roberts (R), and in lieu of SSCI Minority Ranking Member Jello Jay Rockefellor’s absence, his top SSCI staffer:

    “…(TS[redacted] The enhanced techniques were described in considerable detail, including how the water board was used. The General Counsel described the process by which the techniques were approved by a bevy of lawyers from the NSC, the Vice President’s office and the Justice Department, including the Criminal Division and the Attorney General who opined that the techniques were legal under U.S. law…”

    (My Bold)

    Can you say David Addington and Scooter Libby? I thought you could!

  38. MadDog says:

    @MadDog: I should also note that according to the CIA’s own Memorandum for the Record, the CIA apparently did not attempt to dissuade Jane Harman of her statement that the “[redacted – about 25 characters – perhaps Memorandum of Notification?] did not specify interrogations and only authorized capture and detention.”

    At that late date of July 13, 2004, who was still fooling whom? Why would the CIA not attempt to correct Harman’s point?

    Because doing so might inform Harman that she had been lied to by the Bush/Cheney regime and the CIA?

    About aspects of the the Gloves Come Off Memorandum of Notification that had been deliberately kept from her (and other members of the Gang of Eight)?

    Can we interpret this any other way? No, I don’t think so.

  39. MadDog says:

    @MadDog: And from page 40 in another CIA Memorandum for the Record concerning a briefing that the CIA gave to staffers of the Senate Armed Services committee on May 10, 2004, there is this:

    “…Summary Text:

    (S/[redacted] On 10 May 2004, CIA’s General Counsel outlined for the staffers the legal regimen that dictated our interrogation activities [redacted – word] that princiipally arose from the Geneva III and IV agreements. He described the differences between the two Geneva agreements as they pertained to [redacted – word] situation. He indicated that [redacted – word] CIA was following Geneva, and in fact that some of our rules might be described as more stringent than Geneva required.

    (S/[redacted] The General Counsel had previously received White House concurrence to acknowledge that, with respect to counterterrorism [redacted – 6-8 words] which was approved by the White House and the Attorney General. These were deemed lawful and were not strictly under the Geneva agreement. He indicated that the Chairman and Ranking Members of the Senate and House Intelligence Committees had been briefed as well as staff directors, but those are the only Members/staff of Congress that had been briefed…”

    (My Bold)

    If as Jan Harman stated later on July 13, 2004 that she was was “unaware that the [redacted – about 25 characters – perhaps Memorandum of Notification?] included delegation of authority to the CIA for “interrogations”, then how could CIA General Counsel Scott Muller state earlier on May 10, 2004 that “the Chairman and Ranking Members of the Senate and House Intelligence Committees had been briefed” about the CIA’s interrogation activities?

    The answer: He could not. Not without lying. Update – Jane Harman wasn’t apparently briefed on this, however it may be that Nancy Pelosi, Ranking Member of HPSCI in 2001 was.

    And a further update: For the purposes of our analysis, at the time that CIA GC Scott Muller gave this briefing, Jane Harman was the HPSCI ranking member and therefore, my point that she stated no knowledge of the CIA’s authority for “interrogrations” after Scott Muller’s briefing still holds true.

    Muller may have been telling the truth on May 10, 2004, but he still made no effort to dissuade and correct Jane Harman of her statement regarding a lack of knowledge regarding CIA “interrogation” authority later when he was briefing her in July 2004.

  40. scribe says:

    @orionATL: Small world.

    Someone once posited a theory that the whole world is composed of small towns of somewhere between 5,000 and 10,000 people, even in big cities or spread across continents, the “towns” being defined by commonality of interests, objectives, mindsets and the like, not necessarily geography. Everyone lives in a small world.

  41. klynn says:


    Should read:

    ”Was 9/11′s failed prevention intended?” For the Executive, the event held so much “power promise.”

  42. emptywheel says:

    @MadDog: Right, I made that point in this post. And Harman had been implicitly asking for a finding before.

    I think Harman’s questions are one of the reasons why the Admin is so touchy about all this.

  43. emptywheel says:

    @MadDog: No, that’s not right.

    Gang of Four is the Intell Chair and Ranking Members. That’s who got briefed, though incompletely and late.

    The Leadership was not briefed at all, even by CIA’s account (which is relevant bc they would have been able to do more on funding).

    But I think you’re misunderstanding what the finding was. Remember that memo Bradbury did where he said, “whatever you want to put in Appendix M is legal”? Same kind of thing.

  44. emptywheel says:

    @MadDog: Remember that there’s a section of the IG Report (IIRC on 2 paragraphs on page 11–it’s downstairs) that describes the MON. As I noted in one of my bazillion posts on this MON, there’s a passage of one of the OLC reports (one of the longer ones that Hellerstein was trying to get liberated, but which he ceded on after the “new developments” from February 2010) that cites that passage of the IG report.

    In any case, whatever’s in that paragraph is apparently what Harman was working with, as well as comparing it with her personal knowledge of the MON itself. Given her comments about it, we can be sure those two paragraphs don’t say the MON authorized torture).

  45. emptywheel says:

    @MadDog: No, both Pelosi and Harman were briefed.

    Pelosi was briefed w/Goss in early September 2002. Both Goss and she say they were briefed on the torture being used prospectively. Dick Shelby and Bob Graham were briefed in late September, but weren’t told abt the torture, per Graham. (Nevertheless, Graham started an investigation in the subsequent months, but then left the Committee to run for President.)

    Then on February 5, 2003, Harman and Goss were briefed, and then Pat Roberts but not Jay Rockfeller (though a staffer was there). This was where CIA tried to get permission to destroy the tapes. Note that the WH appears to have reviewed the CIA’s MOUs from that briefing, and the CIA somehow never finalized teh Harman one (though they did finalize the Roberts one, which of course gave them permission). After that briefing, Harman sent the note basically asking if the President had authorized this, which again was dealt with in joint CIA/WH fashion, but she didn’t get an answer to that either.

    Basically Pelosi and Harman should have blown this up then, bc it was clear they were trying to avoid this issue. Harman tried, but didn’t succeed.

  46. MadDog says:

    @emptywheel: Damn! Here it was that I thought I discovered a gold mine, only to go to that link and find EW was there before me.

    Well at least I can plead ignorance because it seems I somehow didn’t comment on that earlier post of yours. *g*

    Nevertheless, I still think the point about Jane Harman’s statement is really important regarding your latest Gloves Come Off Memorandum of Notification post.

  47. MadDog says:

    @emptywheel: @emptywheel: In response to both of your comments, I have a question regarding what you say here:

    “…Then on February 5, 2003, Harman and Goss were briefed…”

    But briefed on what exactly?

    It sure seems like Harman is pretty clear that she was not aware of [redacted – something] authorizing “interrogation”, and instead only authorizing the CIA to do rendition and detention.

    That sure sounds like a “finding”.

  48. MadDog says:

    @emptywheel: It’s funny you should mention the IG report because I had that open too and was digging through it for the last couple of hours. I think the paragraph hinting at the MON is a redacted part at the beginning of page 12:

    “…on 28 January 2003 signed “Guidelines on Confinement Conditions for CIA detainees” and “Guidelines on Interrogations Conducted Pursuant [redacted sentence – the MON?] The DCI Guidelines require individuals engaged in or supporting interrogations [redacted sentence – the MON again?] be made aware of the guidelines and sign an acknowledgment that they have read them…”

  49. MadDog says:

    @MadDog: And I do have to confess that I’ve long held the belief that the Gang of Four was the Majority and Minority leaders of both houses of Congress. I don’t know why, but its been a good long while. Doh!

  50. lefty665 says:

    @P J Evans:

    “You might want to get the name right, before you start throwing stones at a veteran commenter.”

    It’s descriptive. He has frequent posting clusters, often with very low information coupled with abusive outbursts(meds maybe?). If that’s what you mean by “veteran” then we agree. He does hit a good note from time to time.

    You have a pretty firm grasp of written language, and are apparently on decent terms with him. How about giving him a little friendly instruction on the use of the caps key? No caps was a feature with Archie, but he was a cockroach who could not reach the caps key and a letter at the same time, and Archie had insight.

    If it’s a keyboard problem, I’ll be pleased to donate one. I’ve worked with people with severe disabilities for a lot of years, and have some experience with adaptive devices.

    Sometimes “veteran” can just mean “old and crotchety and tired of wading through crap to get to the wonderful stuff that makes this place special”.

    I should have the grace to just ignore his posts, and not further clutter up the space. I apologize for that failure. I’ll try to do better.

  51. pdaly says:


    small correction. The wikipedia article you linked to states Viet Dinh graduated from the undergraduate college in 1990 with a magna cum laude honors degree. Then in 1993 Dinh graduated magna cum laude from Harvard Law School with a JD.

    I was surprised to learn that Viet Dinh’s father was put through a reeducation camp after the fall of Saigon. Viet Dinh later becomes a registered Republican in the US.

    Similarly, one of my friends from college was born in mainland China and lived with her grandparents while her own parents were in the reeducation camps of China’s Cultural Revolution. Both my friend and her parents are staunch Republicans now in the US.

    Trying to determine if this is a coincidence or pattern.

  52. pdaly says:


    Aside from Scooter, who else used to say they don’t use email much?
    Former FBI Director Louis Freeh comes to mind.

    I wonder if Addington, as keeper of the records, was a non emailer during work hours.

  53. orionATL says:


    let me put it slightly differently than i did @35 above:

    it’s the caring, not the spelling, that counts.

    only a university prof would raise such a trivial issue in the midst of an important conversation like this.

    your contributions here have been substantial. i can’t begin to count the number of really valuable articles i have read based on your cites.

    thanks for caring and contributing.

  54. orionATL says:


    thanks for the correction.

    about your friends,

    that is a very interesting question. i see it among some immigrants i know, all among the well-educated.

    i think it is, maybe, an issue recognized in social psych some time back – the super-believing/achieving convert.

    overtly, the republican party espouses “american values” including the value of interest in this case, “making it on your own”.

    of course, successful refugees included, none of us make it on our own. but refugees operating outside american culture while living within it, might feel they were making it on their own, even though they had received and were receiving substantial help from that american society.

    certainly, very hard work has been the key to many an immigrant’s success.

    what i see, though, is that immigrants at the bottom of society have no illusions about the “success Thur hard work” fable. they work physically hard every day, 6 or 7 days a week, and they get nowhere, just making enough to pay rent and send money back home to the family for the children’s education.

    the republicans among immigrants are, i would guess, the immigrants with an educational advantage and a poor sense of how their life might have been different.

  55. orionATL says:


    let me add one more thing:

    high-achieving immigrants with legal educations, like dinh, yoo, alito, are heavily recruited by the federalist society.


    i presume because they are recognized to be more vulnerable to recruitment because less attached to american society and more needing of a place to feel accepted.

  56. Bob Schacht says:

    @klynn: ISTM, it will be up to the Courts to untangle this. Unfortunately, they have to work with cases where the plaintiff has standing, so with the DOJ dragging its feet, its gonna be a long time.

    Bob in AZ

  57. Bob Schacht says:

    I’m only part way through the comments, but have to get this out: EW, excellent analysis, but it makes me even sadder. Essentially, the point you seem to be making is that the damned AUMF is not the real villain. If Congress were to repeal the AUMF, we’d still have this damned MON to deal with.

    I don’t think our Founding Fathers ever anticipated this way to hijack the Constitution. What a mess we are bequeathing to the next generation.

    Cheney may not have written the MON, but his appreciation for bureaucratic praxis suggests to me that this MON was a Cheney legacy. I’ll bet that he knew about previous MONs, and realized their potential for creating a shadow government inside the publicly known government. And Brennan was probably in on it.

    Bob in AZ

  58. emptywheel says:

    @MadDog: She was briefed on the CIA’s use of torture. It was the first time CIA actually briefed on using–not just contemplating the use of–torture, and it’s clear waterboarding was included in the briefing.

    Go back and read Harman’s letter from after that briefing–because he response was quite interesting. When she asks if the President has

    Last week’s briefing brought home to me the difficult challenges faced by the Central Intelligence Agency in the current threat environment. I realize we are at a time when the balance between security and liberty must be constantly evaluated and recalibrated in order to protect our nation and its people from catastrophic terrorist attack and I thus appreciate the obvious effort that you and your Office have made to address the tough questions. At the briefing you assured us that the [redacted] approved by the Attorney General have been subject to an extensive review by lawyers at the Central Intelligence Agency, the Department of Justice and the National Security Council and found to be within the law.

    It is also the case, however, that what was described raises profound policy questions and I am concerned about whether these have been as rigorously examined as the legal questions. I would like to know what kind of policy review took place and what questions were examined. In particular, I would like to know whether the most senior levels of the White House have determined that these practices are consistent with the principles and policies of the United States. Have enhanced techniques been authorized and approved by the President?

    Remember how the finding is supposed to work. It’s not a certification that the President has determined the activities to be legal (though he’s not supposed to okay anything that’s not). It’s supposed to be the President stating in such a way that he can be held politically responsible that such a practice is necessary and a benefit to the foreign policy of the US. That’s what she was trying to get, but they refused her.

    One more note, that I’ve only now noticed: note that she uses a word to refer to the torture that is redacted. Elsewhere, she refers to “enhanced techniques,” the euphemism the CIA used. So obviously what got redacted was less than a euphemism. Was this notice that Harman considered these torture?

  59. emptywheel says:

    @MadDog: No. It’s page 11. The way you can tell is that those two paragraphs are introduced with a discussion about the National Security Act, which is what requires Findings. (Besides, we know this because it has been confirmed in the court discussion here–they made it clear that the largest redaction in the Bybee memo–the one on page 4 of the CAT memo–refers to these passages.

  60. emptywheel says:

    @MadDog: Oh wait. I see you were working with PDF numbers. The big reference to the Gloves Off MON is on numbered page 11.

  61. tjallen says:

    @Bob Schacht: Bob you said: “I don’t think our Founding Fathers ever anticipated this way to hijack the Constitution. What a mess we are bequeathing to the next generation.”

    Seems to me it’s been this way since 1947 and the origin of the national security state. We were bequeathed this mess by the “greatest generation” still shell-shocked by WWII and Russian nukes, and not so wary of authoritarian systems and not so worried about so-called democracy. Since 1947, the National Security State has become a deeply-entrenched interruption of American democracy.

    I don’t usually buy into conspiracy theories, and maybe things were also bad before 1947, but my take is that was the watershed date and watershed law(s), between America as a pre-WWII democracy and America as a military dictatorship/national security state.

    And yes, it seems we are bequeathing this to our kids, without much critique or care, and lying to them that this is democracy.

  62. klynn says:

    @Bob Schacht:

    My concern is that the courts are highjacked and DOJ is highjacked. SO I am not sure there is hope for justice confronting the reality that EW is unpacking here with evidence analysis.

  63. klynn says:


    Is “signing off” another way to relieve liability of the Executive? If so, why was there the need to further address liability by sneaking cover into legislation in 2006?

    What is amazing in the “way things work in DC” is the fact that there is so much effort made to hide the process of building up Executive power, and an equal effort made to cover tracks on torture, as well as an effort to deny the courts an opportunity to find out what is going on through smoke and mirrors tactics. All of these efforts to dodge and hide the realities which are related to one another, are in fact the acts of admission to the level of the illegality of all of the illegal actions happening without accountability. We are not in a democracy.

    We have paperwork which hides the President’s role in torture. Yet we have the need to have those on the front lines of administering torture to sign-off on their understanding of the EIT’s and that these are not “torture.” Then Congress gives cover in an act in 2006 to any military involved in torture. Now we have two sides CYAing. Both efforts to CYA = admission of the act. Otherwise, there should have been no need to CYA. And then there is the fact that torture was intended for reverse engineering…My head spins.

    As tjalllen wrote:

    “I don’t usually buy into conspiracy theories, and maybe things were also bad before 1947, but my take is that was the watershed date and watershed law(s), between America as a pre-WWII democracy and America as a military dictatorship/national security state.

    And yes, it seems we are bequeathing this to our kids, without much critique or care, and lying to them that this is democracy.”

    And, where is the point of division between the parties? Because the leaders we elect are carrying out the same agenda.

  64. emptywheel says:

    @tjallen: Note it answers teh points you were making about MON v. Finding.

    It is a continuation of a Finding: St. Ronny’s, he of teh making deals with terrorists.

  65. tjallen says:

    @emptywheel: I see how you’ve answered my comment about how the presidential legal shield entity is built right in. The president need not ever anymore be caught signing off on illegal findings – the CIA can do it themselves.

  66. tjallen says:

    @emptywheel: I’ve read other Gary Wills and I’ll put Bomb Power on my list. Thanks! I read some of this stuff in Gore Vidal, Noam Chomsky and/or Chalmers Johnson.

  67. tjallen says:

    One thing that could be clearer is the difference between creating a Finding or MON, and notifying Congress. You might think, using common sense, that notifying congress meant showing them the signed Finding. I am almost sure this is completely false; congresspeople (whether security committee or Gang of #) never see the actual Finding, rather they are notified of its existence and briefed on it, in outline. The congresspeople are not allowed to take written notes or otherwise record the briefing. Questions are highly limited and usually not answered right away at the briefing, but rather mulled over and answered at a future briefing. The congresspeople are not allowed to discuss the contents even with their most trusted advisers. The word “notification” does not encompass congressional approval, debate or disagreement with the content of the Finding – not sure how this squares with “oversight”. For a congressperson to do something about what they were briefed on is almost impossible, by design.

  68. lysias says:

    @MadDog: Is Oct. 3, 2001 close to the time the Bush administration first sent a draft USA PATRIOT Act to Congress?

    The anthrax letters to the offices of Senators Leahy and Daschle were postmarked Oct. 9, 2001.

    As the USA PATRIOT Act and the AUMF were to Hitler’s Enabling Act passed by the Reichstag, the MON was to the Reichstag Fire Decree, a purely executive act, which, as a matter of power politics, rendered any subsequent legislative ratification superfluous.

  69. lysias says:

    Late in the morning of 9/11, when the DOJ building was evacuated, John Yoo stayed behind in his office, and over the succeeding days he plotted with lawyers in the White House about what the government’s legal response to 9/11 should be.

    Would he have stayed behind in his office if his staying behind had not been prearranged?

  70. lysias says:

    @pdaly: I assume Viet Dinh was radicalized in a right-wing direction by his and his family’s experiences in Vietnam, just as I believe I have read John Yoo was similarly radicalized by his family’s experiences during the Korean War.

  71. orionATL says:


    that may well be, but empowering the u.s. gov’t with totalitarian-like powers – to torture, to spy, weakening citizens’ legal protections – would seem an odd response for two men whose family’s experienced gov’t repression.

    the federalist society, on the other hand, makes a point of recruiting and attending to talented young immigrant/first-generation lawyers and would have applauded the legal positions taken by dinh and yoo.

  72. pdaly says:

    @lysias: and @orionATL (above)

    I guess I figured survivors of totalitarian regimes would, like our Founding Fathers, have an aversion to concentrating power in the hands of the few/one. That these recent immigrants (Dinh, Yoo) would rather do the opposite surprises me.

    The only answer I have heard from my Chinese born friend and another family from the former Soviet Union why they prefer the Republican party has to do with nonpolitical (to me at least) immediate goals of making money without government interference– something like ‘in America you can make money and literally keep your property’–as if that were even true today.

    Their family sufferings at the hands of their former governments seems not to be such an important issue to prevent in America–except as it relates to protecting powerful business interests from being “hurt” by the government. Maybe they are enamored with the novel idea of a business entity and identify too strongly with the idea of businesses are people. Maybe government regulation is for them an extension of government abuse of people that they suffered first hand.

    In any case, for me it still comes back to concentrated power corrupts. Divide the power, protect the populace. I wish our immigrant Republicans were on board with that one, too.

  73. lysias says:

    @pdaly: What I wish is that they could at least realize that the Cold War ended over 20 years ago. Whatever threat Islamism and potential competitors may pose to this country now, it is nothing like as great and urgent as we were at any rate persuaded to believe Communism and the Soviet Union were during the Cold War.

  74. Bob Schacht says:

    @emptywheel: Well, if you’re going back that far, you might as well go back to the Plymouth Plantation. William Bradford peaked at the pilgrim’s mail from England, which enabled him to nip at least one anti-pilgrim plot in the bud. Seems like my ancestor, William Bradford, was not a civil libertarian.

    Bob in AZ

  75. Bob Schacht says:

    @tjallen: Your suspicions are supported by a recent book, an NYT best seller, claiming that the watershed began with the Manhattan Project. Ah! EW remembers @ 82– the book is Gary Wills’ *Bomb Power*.
    Bob in AZ

Comments are closed.