Government Invokes Valerie Plame to Argue CIA Acknowledgment that Bush Authorized Torture Is Not Official Acknowledgment

As you’ll recall, back in April I went on a week-long rant about the great lengths–including submitting a secret declaration from the National Security Advisor–the Obama Administration had gone to hide a short reference to the September 17, 2001 “Gloves Come Off” Memorandum of Notification. In doing so, it appears the Obama Administration hid George Tenet’s invocation of the Presidential MON that authorized the capture and detention of terrorists but which the Bush Administration used as its authorization to torture those alleged terrorists. (post 1, post 2, post 3, post 4, post 5, post 6, post 7)

In a classified hearing on March 9, the government claimed that releasing the reference in question would “reveal[] for the first time the existence and the scope of” what now clearly appears to be the MON. After I went on my rant, the ACLU informed the Circuit Court that the claim might be false. If the reference was indeed to the MON, ACLU wrote, then the CIA had already revealed that the September 17, 2001 MON authorized torture in this litigation.

If true, it may be relevant to this Court’s consideration that the CIA officially acknowledged the existence of that memorandum in this very litigation.

In response to appellees’ Freedom of Information Act request, the CIA identified as responsive “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” and “to set up detention facilities outside the United States.” Eighth Declaration of Marilyn A. Dorn

On Friday, the government responded, effectively saying that Marilyn Dorn’s declaration doesn’t count as official acknowledgement of the MON.

For the reasons set forth in the Government’s classified filings, the disclosures identified in plaintiffs’ letter, including the information provided in the Dorn declaration, do not constitute an official disclosure of the information redacted from the OLC memoranda.

Notably, in its discussion of the cases which it cited to support its claim that Dorn’s description of the MON doesn’t count, it also included language that would address John Rizzo’s extensive blabbing about the MON as well as Glenn Carle’s CIA Publication Review Board-approved reference to CIA having received a Finding covering torture (neither of which the ACLU mentioned in its letter). But look what case they cited to make that argument.

This Court applies “[a] strict test” to claims of official disclosure. Wilson v. CIA, 586 F.3d 171, 186 (2d Cir. 2009). “Classified information . . . is . . . officially disclosed only if it (1) is as specific as the information previously released, (2) matches the information previously disclosed, and (3) was made public through an official and documented disclosure.” Id. (quoting Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007)). With regard to the requirement of “official and documented disclosure,” the Court has made clear that “the law will not infer official disclosure . . . from (1) widespread public discussion of a classified matter; (2) statements made by a person not authorized to speak for the Agency; or (3) release of information by another agency, or even by Congress.” Id. at 186-87 (citations omitted). [my emphasis]

There’s a lot packed in here. If Marilyn Dorn–who was the CIA’s long-time Information Review Officer when she wrote this declaration–doesn’t count as “a person authorized to speak for the Agency,” then it seems likely that the CIA is not the agency at issue in this case (remember, rather unusually, the National Security Council directed that the torture program be made a Special Access Program; the CIA didn’t do so of its own accord). Which would seem to explain why the government also emphasizes that release of information by another agency doesn’t count; that’s only relevant if the CIA is not the agency in question here. Note too that (as I pointed out) Dorn’s declaration included details we know not to be true, such as that the MON authorized clandestine rather than covert activities.

So the content of the government’s claim is interesting enough.

But then consider that the government is invoking Valerie Plame Wilson here!

In her suit, Wilson v. CIA, she unsuccessfully tried to win the right to publish details on her CIA career after Dick Cheney and friends exposed her identity. The Circuit didn’t actually argue that Dick Cheney’s insta-declassification of Plame’s identity wasn’t official acknowledgment, complete with required official record of acknowledgment, which would have been true, but political dynamite. Rather, it said that Plame herself exposed her pre-2002 CIA employment when she let Jay Inslee publish details of her CIA employ in the Congressional Record; the CIA had given her the details but had inadvertently, they claimed, not marked the letter with proper classification marks. So the government, in citing Wilson v. CIA, is not quite equating Dick Cheney’s improper insta-declassification of Plame’s identity as justification for hiding George Bush’s personal authorization of torture. But they’re coming awfully close.

In other words, the Obama Administration is so desperate to hide this minimal reference to Bush’s authorization of torture, they’re citing the most cynical instance of politicized treatment of classified information as legal precedent.

Which I guess is about right.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

31 replies
  1. bsbafflesbrains says:

    This is just more evidence that President Obama is just another paid stooge of the PTB. FORWARD has been his mantra since taking over and any attempt to litigate the sins of the previous administration by others have been blocked or challenged by the White House. Obama doesn’t even have the pretense of guarding the Constitution or faithfully upholding the office of the President.

  2. John B. says:

    Please make some sense of this for me: Are you saying that the Obama administration is so loathe to have all this unpleasantness come up again regarding Bush, Cheney and Team NeoCon’s authorization and implementation of torture and they don’t want the pressure of this much earlier authorization (MoN) both in the news and in the public discourse because that might cause them to have to look back and not forward regarding the prior administration war criminals?

  3. Jim White says:

    My first thought was that DOJ cited the Plame case as a way of pointing out to Marcy that they know who she is.

    And sending a loud Bronx cheer in her general direction…

  4. earlofhuntingdon says:

    It seems a fair conclusion that Mr. Obama is hiding Mr. Bush’s official authorization of torture not just to hide his predecessor’s gross criminality, or to hide that his predecessor allowed his underlings to lead him there. Nor would it be just to hide the actual authorization, either the flawed process used to reach that extraordinary illegal policy or the metes and bounds of it, exceeding the terms of which would be capital crimes. That would create legal and political liability for others, obviously, as well as for the president who failed to enforce the law.

    This presidents’ defining characteristic is to enable the most powerful forces on his horizon. Challenging them by exposing or prosecuting them is not in his make-up, no matter the constitutional obligations he has to enforce the law, no matter the political power he would acquire by doing the right thing or by severely damaging the opposition party. Moreover, to not model their behavior would be an implicit and therefore unacceptable challenge, a kind of status crime.

    No, it seems probable that Mr. Obama’s Chinese contortions here are aimed at hiding his own continuing use of torture. He would see continuing it as a professional courtesy to his peers, a legacy of power he held in trust for his successors.

  5. What Constitution? says:

    So, are the international tribunals which might feel inclined to preserve and enforce international human rights laws against war crimes and torture somehow constrained to buy into the kind of “pay no attention to the man behind the curtain” chicanery involved in these efforts by agencies of the US government to disavow actual facts by claiming those facts weren’t disclosed by the “correct” government entity? Or can the international tribunals admit this kind of evidence without regard for this blatantly Kafkaesque charade? The endgame here is likely to be vindication at The Hague or in Spain, inasmuch as the Obama administration is hell-bent on suborning torture — does this little sideshow “it didn’t happen unless I say it happened” serve the ultimate purpose of providing confirmation of the acts and evidence of “consciousness of guilt”, or are proceedings abroad at all likely to defer to this kind of crap?

  6. Phoenix Woman says:

    @earlofhuntingdon:

    And all because they’re scared to death the Chinese will control and exploit the rare-earth treasure troves in both Afghanistan and Mongolia. (It’s not that the rest of the world, particularly the US, doesn’t have these rare earths so essential to the modern electronic age; it’s that the rest of the world has environmental and labor laws that harsh the mellows of corporate exploiters. Though whether it will ever be cheap and easy, even with slave labor working in horrid conditions, to exploit the mineral wealth of these two forlorn parts of the world is up for debate.)

  7. matt carmody says:

    @What Constitution?: No international tribunal will entertain the notion of going after any of the past or present war criminals in the US (unless they’re former Nazis who so far have been overlooked or whose entry to this country our government facilitated) as long as the US has aircraft carrier battle groups and Marine Expeditionary Units that are capable of and eager to invade any nation that would dare to investigate and/or prosecute one of its citizens.

    That’s why we never ratified the Rome Statute.

  8. earlofhuntingdon says:

    Mr. Obama has a passion to enable TPTB. To be successful at that, he cannot be seen as an agent of change, which makes his oh-so-successful hopey-changey campaign a contradictory, cynical take on rope-a-dope. Campaigns aside, if he is to become anything but a sweeper and cleaner of the corridors of power, he cannot portray himself as angry or uppity, uncouth or passionate, unsavvy or shrill. That’s true regardless of how much Nixon’s successors would see him as all those things just by participating in and being successful in politics. For them, Mr. Obama’s presence is a status crime; for him, it is not being one of them.

    Mr. O is a textbook example of someone desperate to join a club that would never have him as a member. That requires reforming the club – being, not acting, hopey-changey – or, like Clarence Thomas, twisting himself into the shape of those already members. Mr. Obama rejects and reinforces the canniness of Groucho’s seemingly inane observation: that he who would never join a club that would have him as a membership.

  9. bsbafflesbrains says:

    @earlofhuntingdon: I hope your analysis is close to the truth because my feeling is Obama is an active participant and servant of the PTB that are manipulating our economy and government not just a wannabe.

  10. emptywheel says:

    @John B.: I keep promising to do a post on why I think the Admin is trying so hard here–and I guess I still should do that. But one short version is that if they acknowledged this, then everything authorized by it (at least torture, drones, assassinations, and partnering w/Syria and Libya) would become available. Of course, Obama could write his own. But then he’d be responsible for its dubious legality, not Bush.

  11. emptywheel says:

    @Jim White: Nah, I think it’s the perfect precedent, given that it’s a nice way of implynig that CIA is NOT the agency here w/o saying it outright. Perfect, that is, if you ignore all the unpleasant associations with Valerie.

    But cmon, who would actually point those out?

  12. emptywheel says:

    @earlofhuntingdon: It doesn’t have to be torture, though. This MON also authorized targeted killings, and almost certainly was at least partly authorized the Awlaki killing. So it comes with the neat benefit that if anyone ever complains there, OBAMA didn’t sign the authorization, Bush did.

  13. earlofhuntingdon says:

    @emptywheel: Playing hide the pea with which organization(s) and personnel are authorized to torture does distract from the fact of its presidential authorization, from the “limits” so authorized, and from whether, how often, and how far the purported authorization was and is exceeded. And cui bono when those things are ignored. But c’mon, who but you would actually point that out?

  14. bsbafflesbrains says:

    @emptywheel: In my world of ethics and morals that makes Obama slightly worse than Bush since he is contravening our Constitution that he solemnly swore to uphold and then pointing at the other guy and saying “he made me do it”. Bush started an unnecessary war and caused the deaths of thousands so he has to be worse than Obama but…

  15. Clark Hilldale says:

    The Dorn declaration explicitly states (in the section pertaining to “Item 61” – the MON) that “[t]he CIA did not locate a document signed by President Bush outlining interrogation methods that may be used against detainees.”

    According to Dorn, the MON only “pertains to the CIA’s authorization to set up detention facilities outside the USA.”

    IIRC, you mentioned this in post 2 or 3 of your week-long series on the MON. However, most of your commenters chimed in based on their impression that the this MON Bush signed authorized torture.

    That said, there has to be a document at Langley signed by Bush that does allow the agency to “take off the gloves” when dealing with captives.

    When, in the mid 1970’s, the assassination plots against Castro became public, JFK partisans and CIA defenders went to war over who had authorized this flagrantly illegal behavior. Company men told the press that Kennedy gave an oral approval. The Kennedy folks said it was the rogue agency.

    Supposedly from that episode, the CIA resolved to get written approval from the president for any activities that could cause the ultimate sanction to be visited upon the agency in the event that something went wrong or became public.

    We are not talking about the system of Presidential Findings and MONs.

  16. bsbafflesbrains says:

    @jo6pac: I remember reading that Ivy league colleges like Harvard indoctrinate students with the elitist attitude that the “masses are asses” and that the elite educated know best. I know both Clinton and Obama were born poor so they seem to be poster children for confirming that story. It is well to distrust any and all from Harvard until proven otherwise; are you listening Elizabeth Warren?

  17. tjallen says:

    One stray thought on these points and the gloves-come-off MON – although Tenet may have gotten Bush to sign off on a MON that didn’t require coming back for each new operation, one would think that they might need to come back to add new countries to the list of areas of operation. Congressional legislation specifically lists the addition or subtraction of countries to the areas of operation as an item require a new Finding, MON, or notification. Was Yemen even on the radar screen in 2001? And even better, South Sudan didn’t even exist at the time! So I think there is still room to wonder whether new MONs for new countries is still ongoing (and owned by Obama).

  18. emptywheel says:

    @tjallen: First, Yemen was definitely on the radar screen–remember the Cole bombing in 2000 (the investigation of which the Yemeni government obstructed). And we killed our first American citizen (Kamal Derwish–the Lackwanna recruiter) in our first big drone strike in Yemen in 2002.

  19. emptywheel says:

    @tjallen: Adding, yes, the Admin SHOULD have to provide Congress updates. But they should have done so on torture, which they didn’t.

  20. Bob Schacht says:

    EW,
    Thanks for continuing your important work in the weeds on this stuff. I keep hoping that eventually, the dam will burst.

    Thanks,
    Bob in AZ

  21. MadDog says:

    Speaking of torture that the US undertook, the Beeb this morning had this preview of their Jose Rodriguez interview showing later today:

    ‘Vomiting and screaming’ in destroyed waterboarding tapes

    “Secret CIA video tapes of the waterboarding of Osama Bin Laden’s suspected jihadist travel arranger Abu Zubaydah show him vomiting and screaming, the BBC has learned.

    The tapes were destroyed by the head of the CIA’s Counterterrorism Center, Jose Rodriguez.

    In an exclusive interview for Newsnight, Rodriguez has defended the destruction of the tapes and denied waterboarding and other interrogation techniques amount to torture…

    [snip]

    …John Rizzo, the CIA’s top legal counsel who oversaw the legalisation of the techniques in an exchange of memoranda with the Department of Justice, wanted to be certain that what was happening at the black site was in accordance with what had been legally agreed.

    He had not anticipated that waterboarding would be used as often as it was. And he sent one of his most experienced colleagues to the black site, believed to be in Thailand, to find out.

    Rizzo’s colleague viewed all the 92 hours of video and concluded that the techniques were being legally applied, but he was uncomfortable about what he saw.

    “He did say that portions of the tapes, particularly those of Zubaydah being waterboarded, were extraordinarily hard to watch,” Rizzo told me…”

  22. tjallen says:

    @emptywheel: Oh yes, of course, Yemen and the Cole bombing, so Yemen would have been on Bush’s countries of operations list. I am trying to find some country where Obama has operated secretly where Bush did not, which should have triggered the need for an Obama MON to add a country of operation. If they are not even providing new findings for new countries, then that whole findings process is broken (as of course we know it is broken). Thanks for keeping at this!

  23. orionATL says:

    could the gov’s efforts to hide mean we have a secret paramilitary organization that is really secret? like one run out of cheney’s office? or the national security council?

    remember con rice’s aide who visited abu graib in october of the year before the torture became public?

    could this be a reason why rodriguez destroyed the tapes?

    could this organization be the one who murdered the three gitmo detainees about to be freed?

    what fun.

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