Dianne Feinstein Invokes Torture’s Covert Status on Declassification

Five years ago, I reported (BREAKING) that the Bush Administration (aka Dick Cheney) made the torture program a Special Access Program in unusual fashion. Rather than CIA Director George Tenet make torture a SAP, as mandated by the Executive Order governing such things, unnamed people in the National Security Council did so.

Panetta tells a funny story about how (but not when) the torture program became a special access program.

Section 6.1(kk) of the Executive Order defines a “special access program” as “a program established for a special class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level.” Section 4.5 of the Order specifies the U.S. Government officials who may create a special access program. This section further provides that for special access programs pertaining to intelligence activities (including special activities, but not including military operations, strategic, and tactical programs), or intelligence sources or methods, this function shall be exercised by the Director of the CIA.


Officials at the National Security Council, (NSC) determined that in light of the extraordinary circumstances affecting the vital interests of the United States and the senstivity of the activities contemplated in the CIA terrorist detention and interrogation program, it was essential to limit access to the information in the program. NSC officials established a special access program governing access to information relating to the CIA terrorist detention and interrogation program. As the executive agent for implementing the terrorist detention and interrogation program, the CIA is responsible for limiting access to such information in accordance with the NSC’s direction. [my emphasis]

See the funny bit? The first paragraph says the Director of the CIA “shall” “exercise” the function of creating special access programs pertaining to intelligence. But then the very next paragraph says “NSC officials established a special access program.” One paragraph says the Director of CIA has to do it, but the next paragraph admits someone else did it.

Since that time, I’ve asked experts in classification and they agree that something funky went down (note, too, that torture wasn’t a SAP at the very beginning).

I believe torture’s odd SAP status is one of the things that has implicated the Presidency, which the Obama Administration went to some lengths to cover up.

But it also should dictate the White House take the lead on declassification of the torture program.

Don’t take my word for it — take Dianne Feinstein’s word. In a letter to the White House, she invoked torture’s status as a “covert action program under the authority of the President and National Security Council” to call for the White House to lead declassification.

In a letter to the President dated April 7 and obtained by McClatchy, Dianne Feinstein, D-Calif., called for swift action on the summary and the findings and conclusions of the report, which members voted last week to declassify. The summary, Feinstein said, should be released “quickly and with minimal redactions.”

“As this report covers a covert action program under the authority of the President and National Security Council, I respectfully request that the White House take the lead in the declassification process,” the letter reads.

Note, Dianne Feinstein has just formally confirmed the same detail the Obama Administration appealed to keep secret: torture was authorized by the President, not by OLC, not by George Tenet, not by John Rizzo. The President.

Which is why the President should take responsibility for releasing the report.


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.

13 replies
  1. Peterr says:

    DC has a love/hate relationship with the word “Responsibility”.

    When speaking about budgets and fighting over bureaucratic turf, DC players will go to the end of the earth to “take responsibility”. To poachers from other offices, they will loudly proclaim “this is *my* program, not yours” and “this is *my* decision to make, not yours” and “these people report to *me*, not you.”

    When speaking about accountability, especially for things that go wrong or look bad, DC players will run the other way holding their noses and proclaiming their powerlessness as they direct your attention to someone else who had responsibility for the subject in question.

  2. bsbafflesbrains says:

    Could this lead to charges being brought? “We don’t torture” still tortures me.

  3. lefty665 says:

    Wow EW, have you just (re)experienced a John Dean moment? “There is a cancer on the presidency…”.
    Seems consistent with both Cheney’s and Duhbya’s comments. Torture started at the top and they’d do it again.

    • steve says:

      I keep coming back to the Mukasey confirmation hearings. Someone must have told him after day 1 either that (a) the President or VP ordered it, or (b) the President or VP ok’ed it after the fact, so in either case he better shut his yap about whether waterboarding was in fact torture because he would be fired before he was allowed to launch prosecutions.

      It continues to disgust me that he took the job anyway.

  4. x174 says:

    nice work elucidating the interconnections and the not too subtle threats that DiFi’s directing towards potus.

    still, the whole torture report thing makes me wonder about gitmo–you know, where people are still (effectively) being tortured. As in, the you’ve-not-been-charged-with-anything-and-you’re-cleared-for-release-but-you’re-still-gonna-end-up-dying-here-any-way kind of torture.

  5. Michaele Salahi's BF shiv says:

    That “covert action program under the authority of the President and National Security Council?” The Special Rapporteur on Counter-terrorism and Human Rights calls it a legal pretext for “practically shielding from criminal and disciplinary responsibility all those involved in what appears to be a joint enterprise leading to widespread and systematic violations of Article 7.” The Human Rights Committee quotes him.

    Ring a bell? They’re referring to a crime against humanity. Bush’s crime – until Obama acquiesces.

    If Obama doesn’t release that report, he’s going to spend his retirement painting puppies in the Secret Service bunker house with Bush. If Obama does release the report, Marine One is going to throw a rotor and Obama will crash in flames and they’ll build him a big Stalinist-gothic statue facing MLK’s so they can look at each other like, “What was I thinking?” for all time.

    This is why the 44th president had to be a credential-free empty suit. Only some chump who just fell off the turnip truck lets you put him in a bind like that.

  6. orionATL says:

    let’s be clear:

    “national security council ordained torture means condoleeza rice ordained torture –

    no wonder she’s talking sports these days, just building a new rep as a reformed classical-piano-playing good ol’gal.

    rice’s staff, recall, visited the abu ghraib prison – to demand why no info on s. hussein’s whereabouts had been obtained by torture.

    turns out a little old lady had already volunteered the info to interrogators, but wasn’t considered credible.

  7. chronicle says:

    quote” In other words, there’s very good reason to believe that the tapes got destroyed, in part, because they showed CIA exceeding the legal limits laid out by DOJ.”unquote

    note to self…file under…

    Things that even a one cell amoeba could extrapolate.

    sheeezus… 12 years of CIA obfuscation, lies, leaks, whistleblower persecution, spying on
    Congress, and presidential pardon by virtue of looking forward..not backward.. and the conclusion is…. “because they showed CIA exceeding the legal limits laid out by DOJ”

    whudda thunk.

    bartender.. make it a double facepalm before I fall on the floor in gut splitting laughter.

  8. chronicle says:

    quote”Which is why the President should take responsibility for releasing the report”unquote

    wait…..wait…. let me get this straight.

    quote” Note, Dianne Feinstein has just formally confirmed the same detail the Obama Administration appealed to keep secret: torture was authorized by the President, not by OLC, not by George Tenet, not by John Rizzo. The President.”unquote

    Hahahahaha! Unless I’ve suffered a cerebral hemorrhage, I see a contradiction of biblical proportions. It’s defined by….”looking forward..not backward”. I mean, c’maaaan.

    Obama, …take responsibility for declassifying a report that would make him not only the laughing stock of the entire planet, but prove the Bush/Cheney cabal were war criminals, notwithstanding Obamas co-conspiring to cover it up??????????


    ummmm, seriously. When pigs fly.

  9. chronicle says:

    wait….wait….HAHAHAHAHAHAHAHAHAHAHA! I get it. You sly fox emptywheel. Your satire is sharper than a surgeons scalpel.

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