George Tenet’s Bureaucratic CYA

Let me divert from my obsession on the CIA’s efforts to hide references to what I believe is the September 17, 2001 Memorandum of Notification authorizing torture and a whole lot else to talk about what a neat bureaucratic trick George Tenet pulled. As I’ve confirmed, what the CIA is going to some length to hide is the second half of the title of the document George Tenet drew up to try to impose some kind of controls on the CIA’s torture program in January 2003. The title reads, “Guidelines on Interrogations Conducted Pursuant to the” with the authorities that authorize such interrogations redacted.

But let’s take a step back and put that document–with its now highly sensitive invocation of the authorities on which the torture program rested–in context.

As far as I’m aware, unlike Michael Hayden and John Rizzo, Tenet has not publicly confirmed a Presidential Memorandum of Notification authorized the torture program. In his memoir, he describes a briefing he conducted on September 15, 2001, two days before Bush signed the MON. He describes asking for authority to detain al Qaeda figures.

We raised the importance of being able to detain unilaterally al-Qa’ida operatives around the world.

He also pitched using drones to kill al Qaeda operatives.

We suggested using armed Predator UAVs to kill Bin Laden’s key lieutenants, and using our contacts around the world to pursue al-Qa’ida’s sources of funding, through identifying non-governmental organizations (NGOs) and individuals who funded terrorist operations.

And he describes a whole bunch of other asks, like partnering with the Uzbekistan and–as part of another ask–with Syria and Libya. In short, Tenet describes asking for authorization to do the things we know are included in that MON.

Then, he describes watching Bush kick off the war on September 20, reflecting,

By then, as I remember, the president had already granted us the broad operational authority I had asked for.

Well, sucks to be Tenet, because as it happens, Bush authorized those activities broadly, but never put in writing that the authorization to detain al Qaeda figures included the authorization to torture

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

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

Fast forward 16 months. The CIA has, as ordered, started brutally torturing detainees. With video! In addition to waterboarding Abu Zubaydah and Abd al Rahim al-Nashiri, probably conducting a mock burial–with video!–of Abu Zubaydah (in violation of John Yoo’s sole limit to the torture program), and staging a mock execution with Nashiri, the CIA killed at least Gul Rahman (with DOD torturing two other men to death). Jim Pavitt decided to get CIA’s Inspector General involved. Then, on January 24, 2003, DOJ and CIA got together to discuss the legality of all this torture, mock execution, and killing. While Criminal Division Chief Michael Chertoff told CIA that “use of weapon to frighten a detainee could have violated the law” (he seemed less interested in a different episode), he did tell CIA that DOJ will let CIA OIG develop the facts. Four days later, on January 28, 2003, Rizzo called CIA Inspector General John Helgerson and said,

Based on what Chertoff told us when we gave him the heads up on this last week, the Criminal Division’s decision on whether or not some criminal law was violated will be predicated on the facts that you gather and present to them.

And that’s when John Yoo and Jennifer Koester started working with the Counterterrorism Center to retroactively authorize a lot of what had been done so when CIA Inspector General was done collecting the facts, it would look like they complied with this (retroactively generated) set of guidelines.

But that’s also the very same day, January 28, 2003, when Tenet issued this memo (there are records of conversations with Rizzo in the period that I’d need a long time to dig up, but it’s fairly safe to assume he was in the loop on the legal issues).

Now, some aspects of this memo are key improvements. It added more oversight and mandated a cable record of the treatment involved.

Some are technically expansions over what John Yoo had authorized. The memo added the use of diapers and abdominal slaps to the existing list of approved techniques.

But in the context of this FOIA battle between ACLU and CIA, I’m most interested in how CIA’s staff structured the document. As noted, the title as well as the entire first paragraph describes what authorized the program–presumably the MON the CIA is trying to hide all mention of.

But whoever structured this document also built it for maximum ass-coverage. The legal authority appearing in the title–what I suspect to be a reference to the MON–also appears in the header of each page. That holds for the last page, too, which anyone engaging in enhanced interrogation would be required to sign. Moreover, the statement they attest to once again repeats that authorization.

In short, this document was designed to make it impossible to discuss the program without seeing the basis of its authorization, presumably including reference to the President. And anyone who engaged in torture would presumably know that Bush had authorized such behavior.

So as I continue to obsess about this little reference to the authorization for the torture program, remember that it appears in all these places because at a time when DOJ was considering legal charges against the CIA for torture, George Tenet made sure that the authorization–presumably, Bush’s authorization–appeared every time someone discussed the structure of the program.

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.

27 replies
  1. harpie says:

    Marcy, There’s a typo, here:

    the very same day, January 28, 2001, when Tenet

    …don’t have anything else to say…just trying to take it all in. Thanks for this “obession” of yours.

  2. pdaly says:

    Thanks for the series of posts about this, emptywheel.

    tjallen at your prior post links to a Reagan era document discussion of MONs.
    http://www.emptywheel.net/2012/04/18/the-cia-continues-to-cover-up-bushs-authorization-of-torture/#comment-346093

    Not sure if it helps the present discussion to ask, but do you know to which presidential Finding this 9/17/2001 MON has been appended?

    Also, if the Unitary Executive is so powerful and can legally decide for the Executive Branch was is and what is not legal, why do you think the CIA is so eager to hide Bush’s endorsement of torture?

    Do OLC memos from his executive DOJ really insulate Bush from war crimes accusations whereas authorizing torture on his own via a MON does not?
    (or am I jumping to conclusions here?)

  3. MadDog says:

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

    (My Bold)

    I realize that this is Rizzo’s writing, and will agree ahead of time that one should take its accuracy with a grain of salt, but having said that, the reading of this passage brings the following thoughts to mind:

    1) The first bolded passage explicitly states that Bush signed a directive.

    2) The second bolded passage avoids naming names, but instead states that the amorphous “White House” directed the cover-up about the details of interrogation.

    When I read the passage, and believing I understand at least a little bit of the personality of Rizzo, I think the avoidance of naming names was deliberate and done out of fear.

    Who in that amorphous “White House” would engender that fear about naming names in Rizzo?

    Like a mouse coming upon a cobra, I think there are but a few White House candidates for that nomination, and they all were part of the OVP.

    I don’t think it was Bush because if he had directed that second cover-up, I think we would have heard about it. Plus, I don’t think Bush had that level of intellectual awareness nor the political savvy to come up with the cover-up.

    I don’t think it was Condi Rice, because she couldn’t put the fear into anyone. Not even by her personal relationship with Bush.

    The candidates in the OVP are Cheney of course, Addington, and perhaps Libby. All of those would inspire fear in Rizzo. Cheney and Addington all by themselves. Libby, by dint of asserting that Cheney was insisting on the secrecy.

    This seems entirely in keeping with Cheney’s publicly acknowledged insistence on avoiding putting anything in writing. He, and the rest of his OVP cabal, would make that their overriding principle in the execution of their power in the Executive branch.

    I can very easily imagine the OVP laying down their law with Tenet, and Tenet being the obsequious and fawning flunky that he was known for, would salute the OVP and say “Yes sir! No Sir! Three bags full sir!”.

  4. MadDog says:

    @pdaly:

    “…Also, if the Unitary Executive is so powerful and can legally decide for the Executive Branch was is and what is not legal, why do you think the CIA is so eager to hide Bush’s endorsement of torture?…”

    If I may offer an opinion, I suspect that despite Tenet’s best effort to, as EW puts it, “ma[k]e sure that the authorization–presumably, Bush’s authorization–appeared every time someone discussed the structure of the program”, that the best he could do was refer to a Presidential directive authorizing the CIA to conduct interrogation, but no such written and signed Presidential directive with regard to the actual details of the methods of the CIA’s “interrogation program”.

  5. pdaly says:

    @MadDog:

    Oh, I thought CIA was protecting Bush not themselves.

    But then by 9/17/2001 were there already prisoners to be EIT’d/tortured?

    If CIA was in possession of the 9/17/2001 MON, then after reading it, they presumably would have waited for the torture green light in writing before acting?

  6. lysias says:

    @MadDog: @MadDog: I happened to work as a summer legal intern in the Office of the Secretary of Defense in the Pentagon in 1992. At the time, Cheney was Secretary of Defense.

    One of the people who gave a talk to us summer legal interns was the top uniformed lawyer in the Army at the time. He told us that, after Iran-Contra, he was taking care to put nothing sensitive in writing.

  7. MadDog says:

    @pdaly: If I had to bet, I would bet that the OVP made sure that others were left holding the torture bag. I’m still thinking that neither the President nor the OVP cabal put their signatures on paper detailing their approval of the specific methods of torture.

    There were plenty of flunkies that they could get to do that including Tenet, Rice, Gonzalez, Ashcroft, Yoo, Bradbury, Haynes, etc.

    As in the verbiage of the spy business, those folks were “cutouts” meant to insulate the bosses from the orders and decisions those bosses made. In other words, flunky throwaways that could be sacrificed to order.

    That isn’t to say that there were no written documents providing the CIA with cover. The OLC memos were an attempt at exactly that.

    No, no torture victims ready at hand yet on 9/17/2001.

    And no, I don’t think the CIA waited for the OLC green light to torture memos.

  8. MadDog says:

    @lysias: One of the first lessons smart cunning criminals take to heart.

    I had to come back and modify the above. I couldn’t stand sullying my definition of smart.

  9. MadDog says:

    @MadDog: I couldn’t help myself, but I just had to include this commentary from Michael Hasting’s piece:

    “…Many who oversee the drone program, in fact, seem to have little but contempt for those who worry about the poten­tial dangers presented by drones. At a human rights seminar at Columbia University last summer, John Radsan, a former attorney for the CIA, admitted that the agency has no interest in debating the legal niceties of drone strikes. “The CIA is laughing at you guys,” he told the assembled human rights lawyers. “You’re worried about international law, and the CIA is laughing.” A White House official I spoke with is even more dismissive. “If Anwar al-Awlaki is your poster boy for why we shouldn’t do drone strikes,” the official tells me, “good fucking luck…”

    John Radsan is a Professor working at a law school about a mile away from where I live. Much to my regret.

  10. wavpeac says:

    Great series…oh how I love these long detail filled blogs that make me think real hard! As always thanks EW!

  11. emptywheel says:

    @pdaly: Right. They were prisoners. And remember how in 2004, after the IG report was done, Tenet insisted on getting something else in writing–it was supposed to be WH, but I’m guessing Bush avoided signing that.

    And then add in the videos. Why was CIA directed to keep them? To exploit Zubaydah, or the torturers? (Which is something Barry Eisler played with in his novel on torture.)

  12. orionATL says:

    in all this discussion of cia and torture, there are two things that interest me:

    1. that president bush specifically authorized torture, whether in writing or otherwise. this has long been assumed but seems to be closer to explicit confirmation than ever before.

    now or later, it will be confirmed.

    we do not have to wait, however, for implicit confirmation that bush authorized torture. that follows from the conduct of that wiley bureaucrat, tenet, as described in this ew column. tenet made sure his (cia) people were covered by seeing and signing an “understanding” of the official, executive-branch-of-gov’t authorization.

    these matters are relevant to presidential misconduct, specifically, to violation of a u.n. compact to which the u.s. was a signatory and to violation of a u.s. statute from the 1980’s “de-authorizing” torture.

    this is what cheney and little-cheney were trying to prevent being investigated by their rounds of visits to the teevee networks soon after obama was inaugurated.

    2. that cheney, rice, bush, and rumsfeld understood from the beginning of the “invade iraq” rhetoric (using as a model cia “psy-ops operations” – which had probably just been successfully used in the florida 2000 presidential vote),

    that torture was to be used to create false confessions implicating iraq as a harbor/partner with al-quaeda,

    in order to use the sept 11, 2001 events to justify (including retrospectively justifying, cf, miller, judy, nytimes) invading and occupying iraq and deposing hussein.

  13. rugger9 says:

    I’d agree with point #2 more than #1’s sidebar about the TV rounds. Recall the issue of the treaty, I’d say the whole grand tour was designed to tar Obama with the same brush, since the political blowback of the RW Wurlitzer was too much for Obama to handle, and so the opportunity was lost.

    It was also an opportunity for the D-controlled House to impeach, yet they did not after following Obama’s lead. It would have been very interesting to me to see the GOP senators squirming as more torture details were dug up, warrantless wiretapping, Katrina response, etc., etc., etc. which may have twinged a couple of them into voting to convict. I don’t think 2/3 was possible, not with LIEberman, but who knows, it may have if the heat was high enough.

    However, once Obama “looked forward” the issue became his as well, and the drone strikes just added to it when combined with the breathtaking assertion that he can kill at will because he calls someone a terrorist. Does he think a GOP president will have any rational basis before cutting loose on the Occupy folks?

  14. orionATL says:

    @orionATL:

    imagine, if you will, how american history would have been different had george tenet resisted all w-house efforts to involve the cia in torture.

    imagine he had resisted those efforts with a fine paper trail.

    then, when he had been fired by cheney-bush,

    imagine how american history would be different if he had publicly said that torture was illegal in the u.s. and the world, and that he was forced to resign – or was fired – because he would not authorize torture.

    imagining further,

    imagine how recent american history would be different had general colin powell resigned just before before giving his famous, deceitful u.n. speech – the one mohammed el-baradei rebutted so eloquently.

    further, had he then, upon resigning, stated his objections to deceitful manipulation of the american media and public by the bush admin regarding iraq and wmd’s or al-q.

    here we have two very distinguished public servants, both of whom failed their nation in a most consequential way.

    moral leadership matters a great deal in human political affairs.

  15. lefty665 says:

    @orionATL:

    “here we have two very distinguished public servants, both of whom failed their nation in a most consequential way.”

    Please read that sentence again. “distinguished public servants”… “failed their nation in a most consequential way”.

    You can have either side of that, but not both, and especially not both in the same sentence. Unless, of course, what you’re arguing is that what distinguished their service was failing their nation. There is considerable evidence for that.

    Powell belonged in the stockade from Mei-Lai coverup days, and Tenet always was a toady.

  16. Bob Schacht says:

    @orionATL:
    “1. that president bush specifically authorized torture, whether in writing or otherwise. this has long been assumed but seems to be closer to explicit confirmation than ever before.

    now or later, it will be confirmed.”

    Hasn’t this already been confirmed, somewhat dismissively, by Bush himself?
    http://michiganmessenger.com/38487/bush-admits-to-war-crimes-in-grand-rapids-speech

    BTW, I’m with those hoping that EW will continue obsessing on this subject. When a dam breaks, no one knows exactly where it will break.

    Bob in AZ

  17. harpie says:

    @MadDog: I just keep thinking about Cheney, distasteful as that is…blcch!
    Two things this made me revisit:

    The Angler; [4 part series]; Washington Post; June 2007

    The first chapter begins with:

    ‘A Different Understanding With the President’;

    Just past the Oval Office, in the private dining room overlooking the South Lawn, Vice President Cheney joined President Bush at a round parquet table they shared once a week. Cheney brought a four-page text, written in strict secrecy by his lawyer. He carried it back out with him after lunch.
    In less than an hour, the document traversed a West Wing circuit that gave its words the power of command. It changed hands four times, according to witnesses, with emphatic instructions to bypass staff review. When it returned to the Oval Office, in a blue portfolio embossed with the presidential seal, Bush pulled a felt-tip pen from his pocket and signed without sitting down. Almost no one else had seen the text.
    Cheney’s proposal had become a military order from the commander in chief. Foreign terrorism suspects held by the United States were stripped of access to any court — civilian or military, domestic or foreign. They could be confined indefinitely without charges and would be tried, if at all, in closed “military commissions.”
    “What the hell just happened?” Secretary of State Colin L. Powell demanded, a witness said, when CNN announced the order that evening, Nov. 13, 2001. National security adviser Condoleezza Rice, incensed, sent an aide to find out. Even witnesses to the Oval Office signing said they did not know the vice president had played any part. […]

    And:

    When the Vice President Does It, That Means It’s Not Illegal; Frank Rich; NYT; 7/1/07

    About how they, beginning in August 2001, revised the text of a 1995 Clinton Executive Order which “[…] had been acclaimed in its day as a victory for transparency because it mandated the automatic declassification of most government files after 25 years. […]”

    […] But few noticed another change inserted five times in the revised text: every provision that gave powers to the president over classified documents was amended to give the identical powers to the vice president. This unprecedented increase in vice-presidential clout, though spelled out in black and white, went virtually unremarked in contemporary news accounts. […]

  18. klynn says:

    WOW EW, you are making some amazing connections and filling in information so many have missed.

    And thank you for doing it because looking back is important to understand “what” is happening now irt “exec power.”

  19. harpie says:

    Sorry for the o/t, but this is shocking…in a vaguely familiar kind of way:

    Paul Krugman posts an article by a Princeton colleague about what’s happening in Hungary:

    The New Hungarian Secret Police; Kim Lane Scheppele; 4/17/12

    It could be called: Cheney’s wet dream

  20. orionATL says:

    i keep obsessing on this:

    that all this torture, all this guantanamo detention, all this renditions and black sites, was never intended to get at “the truth”.

    it was was explicitly intended and used for the purpose of obtaining false information –

    false confessions from the prisoner/slaves in order to deceive the american people into supporting the (illegal, not that it matters) invasion and occupation of an oil-rich country.

    furthermore, that this illegal war, justified by false information, has done great damage to the american economy, to the american political process, to the constitutionally mandated protection of certain rights of individual citizens from gov’t intrusion, to the reputation of the u.s. among other nations, and to the american military itself.

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