The Forgotten OPR Report Exposing the White House Role in Torture

Brennan with TortureMcClatchy reports today that the Senate Intelligence Report will include no details on the White House role in torture.

The Senate Intelligence Committee report also didn’t examine the responsibility of top Bush administration lawyers in crafting the legal framework that permitted the CIA to use simulated drowning called waterboarding and other interrogation methods widely described as torture, McClatchy has learned.

“It does not look at the Bush administration’s lawyers to see if they were trying to literally do an end run around justice and the law,” the person said.

McClatchy’s story is interesting, in part, because I had heard that the report was going to admit what has been in the public domain for years: the torture program, contrary to almost all reporting, was authorized by Presidential finding, not primarily by the memos that garner all the attention.

If the Torture Report is no longer going to confirm that, it is far bigger news than McClatchy has conveyed. It would mean someone — presumably the White House! (though remember the Finding’s author, Cofer Black, was involved in reviewing the document) — had won concessions in the declassification discussions to hide the role of President Bush in personally authorizing torture.

That would be consistent with President Obama’s rather remarkable efforts to keep a short mention of the September 17, 2001 Gloves Come Off Memorandum of Notification suppressed in ACLU’s torture FOIA (something that’s in the public record, but which I have been the only one to report).

But if President Obama’s White House has, a second time, intervened to prevent public confirmation that the President authorized torture, we really ought to start demanding to know why that’s the case. Remember when the 2nd Circuit backed White House efforts to keep mention of the MON suppressed, the White House said it was still using the MON.

The other reason I find McClatchy’s report curious is because it leaves something utterly central out of its narrative.

As Katherine Hawkins noted yesterday, McClatchy missed a key detail in the chronology of when and how Republicans backed out of the torture review.

Obama DOJ investigation into torture is not “prior” to SSCI report. Launched after SSCI, & is reason GOP withdraws

But there’s one more part of that chronology — one McClatchy might actually review if it wants the things it says it wants: the Office of Public Responsibility report into OLC lawyers’ role in the torture memos. Reporting in 2009 made it clear that Eric Holder launched the John Durham investigation in response to reading the OPR Report. So the chronology goes OPR Report, Durham investigation, GOP withdraws from SSCI Torture Report which (McClatchy argues) is when the Democrats could have turned and pushed to get documents implicating Bush White House figures.

While both David Addington and Tim Flanigan refused to be interviewed for the OPR report, it made it clear (especially Jay Bybee and John Yoo’s rebuttals) that both had had a direct role in setting up the legal loopholes CIA used to conduct torture. Between that and other public (largely unreported by anyone but me) documents, it is fairly clear that in response to concerns raised around July 10, 2002, CIA tried to get DOJ to give “advance” declination of prosecution (though for conduct that surely had already occurred). On July 13, Michael Chertoff refused, probably because Ali Soufan had already raised concerns about the conduct (his concerns probably relate to the use of mock burial) to give advance declination for torture. This led John Yoo to freelance a July 13, 2002 fax laying out how CIA could avoid accountability; that appears to be what Jonathan Fredman relied on in his advice to the torturers, not the more famous Bybee Memos. Nevertheless, at a July 16, 2002 meeting at the White House, it was decided (Yoo and Addington differ, it appears, on who did the deciding, but it is a rock solid bet that Addington did) that the Bybee Memo would include Commander of Chief language on how to avoid prosecution.

There are a number of other moments in the history of the program where White House responsibility is clear. But at that moment on July 16, 2002, David Addington got John Yoo to provide legal cover for anything the President ordered CIA do; he did so, of course, after CIA had been torturing for months on Presidential orders.

The answers to many of the questions McClatchy says have gone unanswered are sitting right there in the OPR report. And those answers are crucial to understanding the dance over declassification going on right now.

Aside from whatever else the Torture Report is, it is also a report that dodges the underlying power structure, in which the President orders the CIA to break the law and later ensures CIA avoids any accountability for doing so. At some point in this Torture Report process — fairly recently too! — Democrats seemed interested in exposing that dynamic, a dynamic President Obama has benefitted from at least as much as Bush did, going so far as to permit him to have CIA kill a US citizen with no due process. (That’s probably why Leon Panetta told some fibs in his memoir on this point.)

Ultimately, we’re never going to rein in CIA until we expose the mutual embrace of complicity the White House and CIA repeatedly rely on. Now it looks like the Senate Intelligence Committee has — in bipartisan fashion — decided to back off doing so here.

11 replies
  1. Don Bacon says:

    Ultimately, we’re never going to rein in CIA until we expose the mutual embrace of complicity the White House and CIA repeatedly rely on.

    This statement doesn’t quite go there, but there is a myth in the land that the CIA has gone rogue and the president can’t control it . The poor president — he tries, but he just can’t manage this one agency. Agriculture, Interior, State — not a problem, but there’s no controlling possible of this one agency.
    Horsepucky, I say. The leader of the free world and his extensive “national security” staff, of about 300 people, is in full control of the CIA. The “gloves off” strategy still holds, and there can be no publicity about it because one of the mainstays of US foreign policy is to promote human rights, by force if necessary, in all those states which don’t toe the line. That doesn’t include fellow human rights abusers like Saudi Arabia, for example.
    So the idea that the the CIA will ever be “reined in” without directly nailing the president for directing these CIA nefarious actions is doomed to fail. In other words it goes beyond complicity, to the president ordering human rights violations, which currently involve perhaps (we don’t know) a lessening of torture and an increase in assassination, which is simpler. Suspected militants, with family, friends and neighbors? Kill ’em. Torture is so messy.

    • RUKidding says:

      I’m really on the fence about who runs whom. I have Viet Nam Vet pals who have claimed that the CIA’s been running the show since its inception. It’s a possibility given that it was, at least initially (and still?) run by the wealthy (or their hand-picked representatives). Some say JFK is the warning to anyone following about where and how to tread.

      Some say that Obama was groomed from childhood by CIA.

      Some say that the recent security breaches by an allegedly “incompetent” or “mismanaged” Secret Service were warnings to Obama.

      Anything is feasible and possible. We’ll probably never know the truth for sure.

  2. lefty665 says:

    Thanks EW for remembering, documenting and presenting it clearly enough that any fool can understand. Any bets that the Torture Report will be delayed until the Dems lose the Senate, the Repubs take over, and it goes in the trash along with the OPR report?
    Don, dunno, with the load of neo-cons and haters left embedded, the president might rationally be a little anxious about outing the CIA and Duhbya for torture and war crimes. By now it’s mutually assured destruction with O’s killing of civilians and US citizens. Out us and we’ll take you with us sucka’.

    • Don Bacon says:

      I didn’t suggest that the president out the CIA. I’m saying the president is directing the CIA. I’m saying we should publicly recognize that the president is in full control of CIA human rights violations, and let the president worry about his own security because allowing others to be tortured, killed and injured because of false concern for the president’s security is not a proper option. In fact it’s ridiculous.

      • P J Evans says:

        Remember that the information the president uses to make his decisions comes from the agencies you claim he’s running. That’s a red flag right there: we don’t know if they’re giving him honest information, or telling him only what they want him to hear.

        • Don Bacon says:

          the information the president uses to make his decisions comes from the agencies
          That goes back to the information revolution I referenced. There is no shortage of quality information these days, and it’s common knowledge that the publicly available information is of a higher quality than what the vast “intelligence” community provides.
          So regarding the president’s national security staff, ignorance is not a defense. If they’re not reading emptywheel it’s on them.

  3. Don Bacon says:

    The president is powerless against the CIA?
    It’s called plausible deniability.
    wiki: Plausible deniability is a term coined by the CIA in the early 1960s to describe the withholding of information from senior officials in order to protect them from repercussions in the event that illegal or unpopular activities by the CIA became public knowledge.
    That was the sixties, this is now. I’m saying that presidential deniability is implausible, which rhymes with impossible. In today’s world of rapid communications which allow a president to be vulnerable to a public relations misstep anywhere, any time, the president has centralized power in the White House and in the greatly expanded national security staff, which controls everything of importance with foreign relations.
    The State Department has been largely cut out, with national security orders going out to the Pentagon and its partner in crime CIA. Actually, State has become an appendage of the CIA in some respects. That’s how Ambassador Stevens got it in Benghazi–he was moonlighting at a CIA compound regarding arms shipments to Syria via Turkey. Of course the arms deals were under presidential orders.
    So let’s recognize how the government actually works these days, is what I’m suggesting.

    • lefty665 says:

      @#4 I agree, O is running the show, especially after he put his Jesuit in chief in at the CIA.
      Also suggesting that it’s easier to jump on the tiger’s back than off. Once O compromised himself they had him too (same with the NSA). Blackmail seems to be one of the few things the CIA is good at.
      Dumping Betrayus illustrates both our points.

  4. galljdaj says:

    I recall reading the Jay bybee ‘white papers’ on torture on the internet and having discussions on them. Now they were not marked ‘secret’ or any other way said to be not copied or restricted in any way. Lots of People read them, and they were posted on numerous sites. They were public documents. Sickening Documents, and a whole lot more have ‘disappeared’!

    We very much need law to bar such documents as secret!

  5. Jeff Kaye says:

    But if President Obama’s White House has, a second time, intervened to prevent public confirmation that the President authorized torture, we really ought to start demanding to know why that’s the case. Remember when the 2nd Circuit backed White House efforts to keep mention of the MON suppressed, the White House said it was still using the MON.

    I think you just — ably — answered your own question!

  6. Jeff Kaye says:

    Excellent article and analysis. I know how you feel. I’m always grateful to you as the only other person to both understand and expand on the AFM issue. And of course has done on a lot more on torture.

    The push to overturn the history of government crimes hasn’t ended since the latter years of WW2. The deals made with Nazi and Japanese war criminals at the end of the war was like a bond of blood, as the beed to deny and control history became immediately exigent. At hand was the apparatus of wartime security and secrecy, and these were transformed into what became the National Security State, with CIA at its head, the direct agents, as Don notes, of the President and his National Security Council.

    Given your conclusion on the SSCI, I think if you look back you’ll find more problems with the intel oversight committees stretching into the past, not least from the days when George Tenet was the Senate committee’s staff director.

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