Did Authorizing Torture Make the National Security Council an Agency Subject to FOIA?


Almost 3 years ago, I discovered that the judge in the ACLU torture FOIA, Alvin Hellerstein (who recently ordered the Administration to release images from torture), was trying to force the Administration to declassify a phrase making it clear torture had been authorized by the September 17, 2001 “Gloves Come Off” Memorandum of Notification. The phrase appeared on a January 28, 2003 Guidelines on Interrogation document signed by George Tenet (this post describes what great CYA including the phrase was).

In my reporting on it, I noted that National Security Advisor James Jones had secretly written a declaration in the suit arguing the phrase couldn’t be released. And I also noted that CIA’s own declarations conflicted about who had made torture a Special Access Program, CIA or the National Security Council.

Ultimately, however, the 2nd Circuit — in an opinion written by Judge Richard Wesley — reversed Hellerstein and permitted the Administration to keep that short phrase secret (though the Administration permitted that detail to be declassified for the Torture Report).

These issues have resurfaced in a related FOIA suit being reviewed by the 2nd Circuit (including Wesley and Judges Reena Raggi and Gerard Lynch).

Back in late 2012, Main Street Legal Services FOIAed the NSC for records on drone killing (including minutes of NSC meetings in 2011). The government refused to respond, arguing NSC is not an Agency subject to FOIA. So Main Street asked for discovery that might help it show that NSC is an Agency. It lost that argument with District Judge Eric Vitaliano, and this Appeal focuses on the issue of whether NSC is an Agency for purposes of FOIA or not.

In addition to pointing to statutory and historical reasons why NSC is an Agency, the appeal also points to things — including torture, but also including things like cybersecurity, crafting Benghazi talking points, and drone-killing — that were run out of NSC. The government, in response, argued that the President was very closely involved in NSC and presided over the Principals Committee, meaning NSC was too proximate to the President to be subject to FOIA. The response also keeps insisting that NSC is an advisory body, not anything that can make decisions without the President.

That back and forth took place in the first half of 2014.

Then, the Torture Report Summary got released, showing that CIA records indicate President Bush was not briefed on torture until 2006 but that NSC figures — Alberto Gonzales and Condi Rice, among others — told CIA torture was authorized. Main Street wrote a letter in February pointing to the evidence that the President was not in the loop and that NSC authorized torture.

The SSCI Report found that NSC committees, on which the President does not sit, debated, authorized, and directed CIA to apply specific interrogation techniques to specific detainees. In 2004, for example, CIA “sought special approval from the National Security Council Principals Committee” to use “enhanced interrogation techniques” on detainee Janat Gul. Thereafter, NSC principals met and “agreed that ‘[g]iven the current threat and risk of delay, CIA was authorized and directed to utilize” the techniques on Mr. Gul.

The question of who authorized torture thus became a central issue at the oral argument in this suit on March 2 (this discussion starts after 34:00). After Raggi raised this issue, Wesley went on with some urgency about the possibility that someone started torturing without the input of the President.

Judge Wesley: Are you saying then that anything the CIA did in terms of enhanced interrogation techniques clearly, was clearly a Presidential directive?

NSC Counsel Jaynie Lilley:  No, your honor —

Wesley: Well then, well if that’s not the case, its a very curious position for you to take because some of these bear heavy burdens. Some of these assertions that you’re making that the President is at the end of all these decision chains bear heavy burdens and I don’t quite understand it. Congress said sole duty is to advise and assist the President. If someone else decides to use enhanced interrogation techniques and we decide that this is done by the group, solely by the advisor, assistant to the President, then it’s the President’s decision is it not? Did the decision flow through the NSC?

Lilley: Your Honor, many decisions–

Wesley: Would it, structurally, I’ll it easier, would it structurally have flowed through the NSC as it’s currently structure pursuant to presidential order and an act of Congress, would a decision to conduct enhanced interrogation techniques have flowed through the NSC up to the President. Pursuant to the way it’s structured now.

Lilley: Your Honor, let me be sure I’m answering the question that your asking. There are decisions that are made on matters of national security policy that come through the various–

Wesley: Pursuant to law and the structure of the NSC who had the authority?  Did only one person have the authority to order enhanced interrogations techniques?

Lilley: Your Honor, –

Wesley [voice is rising]: Yes or no?!

Lilley: I cannot speak to individual decisions –

Wesley: Well, if you can’t tell me, then you’re telling me that then the President perhaps didn’t make that decision. And then you’re telling me that someone else did. And if someone else did, then I begin to have a problem. Because I have a hard time understanding how their sole function is to advise or assist the President if suddenly they decide, independent of any Presidential approval, that they can torture someone!

Lilley: Your Honor–

Wesley: It’s very simple Counselor, and I’ve been troubled by the government’s position on this throughout. I’ve been troubled — for twenty years the Office of Legal Counsel said that this was an Agency. And then suddenly in a letter, in 1994, for some reason the Agency flips. We have in the legislative record, we have the committee notes from the two committees, and what is one of the entities that’s listed when they decided to include the Executive office, what is one of the Agencies that Congress lists, one of the groups that Congress lists as an Agency? The NSC. Who created the NSC? The President didn’t. An act of Congress did. An Act of Congress creates two of the Subcommittees. A very curious advisor forced on the President — it sounds like a Separation of Powers issue to me. But, tell me. And then I won’t ask again. And if you don’t want to answer my question don’t answer.

Pursuant to the way the it is currently structured if in your view the NSC is solely an advisory authority, who had the authority to order enhanced interrogation techniques? Who?

Lilley: In any matter of national security policy, there are two places where decisions can be made. One by the President and one by that Agency with the statutory authority to take the act.

Wesley: So you’re telling me that the CIA had the authority to do that?

[snip]

Wesley: The Director of the CIA could have done this independent of the President’s directive?

Lilley: Your Honor, I cannot speak to that.

Wesley: But for purposes of this discussion you’re saying ‘not someone in the NSC’?

Lilley: The NSC could not — does not direct any individual Agency to take individual actions.

Wesley went onto to describe the plight of the CIA that might not want to do something (torture) it has been ordered to do by the NSC, “it’s on him, legally, not on the NSC.” “Yes, your Honor,” Lilley agreed.

While Wesley didn’t say so, that is, precisely, what Tenet argued when he noted Torture was done pursuant to Presidential order on his 2003 Interrogation document, dodging responsibility for torture. But if Lilley’s claim is correct, then CIA bears all the legal responsibility for torture.

At the end of the hearing, Wesley asked Lilley whether they intend to respond to Main Street’s letter. When Lilley said no, Wesley and Raggi specifically instructed Lilley to respond, noting actual page numbers.

In its response on March 16, the government — some members of which have been arguing for months that the NSC approved torture at every step of the process — newly asserted (ignoring the references that show Bush was never briefed until 2006) that George Tenet was only getting NSC’s advice; he was not being ordered or authorized by them.

Another cites a CIA official’s notes indicating that the Principals Committee “agreed” that CIA was “authorized and directed” to engage in certain activity, confirming the CIA had such authority, and that the then-Attorney General approved the resulting action. See id. at 345. These references confirm that the NSC functions in accordance with the advice and assistance role assigned to it by statute and by the President (currently in Presidential Policy Directive-1) as an interagency forum for coordination and exercises no independent decisional authority. The authority for the underlying decisions rested with the relevant heads of departments and agencies or the President himself.

Remember, DOJ has been claiming it never opened this document. Has it now done so?

But the SSCI evidence that Bush was never briefed is a point Main Street made in a letter last night.

Defendant still fails to explain who authorized the torture if not NSC, as CIA’s own records describe, especially given that CIA did not brief the President until years later.

A great deal of documentation shows that “NSC” (or rather, Dick Cheney and David Addington) authorized torture. But the NSC is trying to sustain the unsustainable position that a Memorandum of Notification not listing torture authorized torture, that Bush never got briefed on torture, and that all those meetings at which NSC members (and Dick Cheney) authorized torture didn’t amount to authorizing torture.

Because if it admitted the truth — that NSC or the Vice President authorized torture without any review by the President — then it would make all these documents, the 9000 documents President Obama got CIA to successfully hide, subject to FOIA.

And then we’d really start having some fun.

Update: I’ve added some to my transcription from the hearing and some additional analysis.

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14 replies
  1. earlofhuntingdon says:

    If the DOJ sends you a legal notice, it’s irrelevant whether you open it or not. You are deemed to have knowledge of whatever it is they sent. Then again, neoliberalism is defined by its claim that its main protagonists can have exceptions to whatever laws or rules they want. Because they want them. So what’s not to like?

  2. wallace says:

    quote” Two citations reference meetings (or proposed meetings)with the NSC Principals Committee to “discuss” certain planned CIA activity.
    Executive Summary at 146 (referencing a message indicating that a Principals
    Committee meeting “would be necessary to discuss” activity planned by CIA)”unquote

    Whoa! wait..wait. A Principals Committee meeting “would be necessary to discuss” activity PLANNED by CIA? Activities. right. C’mann. TORTURE is what they mean here.

    Notwithstanding I can’t even believe we are discussing this abomination, let alone it really happened I’ve spent 10 years trying to find out something.

    While this may or may not have a bearing on who “authorized” torturing human beings, to which some even were murdered, this “activity planned by the CIA” as stated above tells me what I’ve claimed for a long long time. Frankly, I don’t give a fuck who “authorized” the CIA to torture humans. To me, this is proof that the CIA had already been drooling at the mouth to use torture, AS THEY HAVE BEEN TORTURING PEOPLE SINCE IT’S INCEPTION IN 1947. They just got caught here, and need someone to throw under the bus, by virtue of “authorization”.

    Look, these degenerate bastards have been torturing, murdering, burning alive, shooting, cutting throats, and generally running amok across this planet(Pheonix, Chile, etc ect etc) perpetrating atrocities that would make ISIS throw up. Given the fact ole Dubya/Cheney/NSC/DOJ/OLC or who the fuck ever so called “authorized” the CIA to do what they already were planning or doing ALREADY, will NEVER be held accountable..as Hillary says…WHAT DIFFERENCE DOES IT MAKE? Notwithstanding those who have died at the murderous hands of the CIA, those humans who suffered during the WOT have tried to drag these maggots into court time after time after time, only to have our wunnerful fucking UN-Justice Dept sonsabitchs claim NATIONAL SECURITY!!!! wereby those pigsucking US District judges acquiesce and throw their cases out of court.

    Frankly, until the day comes every last one of these degenerate psychopaths face a firing squad, their stench will forevermore permeate the so called “exceptional” Murka.

    In truth..the country that my dad fought for in WW11..has now become…

    THE UNITED STATES OF DEPRAVITY. PERIOD. AND FUCK MY GOVERNMENT FOR TURNING THE COUNTRY I ONCE LOVED INTO SOMETHING I KNOW DESPISE WITH ALL MY SOUL.

    Now..excuse me while I fucking puke.

  3. P J Evans says:

    Government, including all its departments, agencies, officers, and employees, is supposed to be beholden to the people for its actions and inactions, and is also supposed to be obeying the Constitution and the laws.
    If they don’t want to do that, then maybe it’s time to kick out everyone who thinks that’s how it should be, and do a wholesale cleaning, possibly including routing the Potomac through the Mall, as should have been done in 2009.

  4. wallace says:

    Btw, as Marcy noted in a tweet today..

    http://www.newsweek.com/bush-gets-intelligence-group-award-317548

    If this isn’t living proof these people live in parallel universe I don’t know what is. Given the “motive” for so called “honoring” certain scumbags like Bush who are responsible for the deaths of hundreds of thousands of human beings across this planet, so the CIA can collect “fees for attending” to help the families of CIA agents allegedly “killed on the battle fronts of their own fucking doing”, is the height of irony. While I wish no anguish on these families, the truth is.. if they actually saw what these pond scum bastards really do they would be hugging toilets for days. They are indebted to Jose Rodriques. Meanwhile, they live in a fucking dream world.

  5. Rayne says:

    [insert string of mixed expletives]

    We’re time travelers, right? We’ve slipped back to 2001-5 to revisit Richard B. Cheney, Vice President of the United States, et al. v. United States District Court for the District of Columbia, No. 03-475 and the final disposition of the Energy Task Force documents — excluded from FACA oversight?

    Let me guess the argument will be that Deadeye and his sidekick deliberated on behalf of Bush, and like the Energy Task Force documents, any documents authorizing torture by way of Deadeye Dick will be immune to production demands. I’d put money on Deadeye claiming that the NSC did not perform any function as an advisory committee on the final decision to torture, and that the deliberative process of the President’s proxy Dick Cheney is excluded from FOIA.

    But IANAL. I thought the Energy Task Force documents were FOIA-ble, too.

    Will no one rid us of this troublesome Bush Administration? Will we fight them like the undead zombies they are, in perpetuity?

      • Rayne says:

        Yes, exactly — we are back to the Barnacle theory.

        (I feel like we’re writing a Bizzaro World episode of Spongebob, this one featuring Mermaid Man and Barnacle Boy.)

        There’s no advisory committee, just Cheney and the barnacle’s barnacle Addington, and as you note, a little additional support from tertiary barnacle Bybee.

        And of course, the outcome of the ETF docs’ suits shaped the handling of 2008 testimony, which will continue to shape the pursuit of torture’s authorization.

        How to break this barnacle defense? Can we cut funding to the rather unnecessary NSC if all their work has been done by a zombie-barnacle?

  6. Jeffrey Kaye says:

    According to the CIA’s own public account:

    Under the provisions of the National Security Act of 1947, the National Security Council (NSC) and the Central Intelligence Agency (CIA) were created. The Act charged the CIA with coordinating the nation’s intelligence activities and correlating, evaluating, and disseminating intelligence that affects national security. The Agency also was tasked to perform other duties and functions related to intelligence that the NSC might direct.

    We know, or believe we know the torture program was under one or more Secret Access Programs. “The National Security Act of 1947 and E.O. 12958 authorize the DCI to create SAPs pertaining to intelligence activities in accordance with Director of Central Intelligence Directive 3/29. The DCI is not authorized to create SAPs for military operational, strategic and tactical programs that are under the cognizance of the DoD.” The latter must be authorized by the Secretary of Defense or or Deputy Secretary of Defense, in accordance with E.O. 12958.

    The CIA’s SAP(s) were certainly created by CIA itself. The NSC is, by this point, a rump executive “agency” whose sole purpose, outside of consultation, is to provide “plausible denial” for the President (or Veep?). The key is to understand that this didn’t all start with 9/11 or the Glove Off MON. Then it all begins to make a dark sort of sense.

    One must remember, by the way, that many programs are approved on oral understandings only. MKULTRA was that way. And way back in OSS times, I have documents in my possession, about which more to come in future, that outright claim that certain assignments and programs, including use of poisons, BW, etc. were communicated orally, and not by written directive or order. I know OSS was long ago, but I believe that became SOP.

    When you have such high levels of secrecy, you by definition have no law. At most you have a smokescreen that masks as law, but is really its simulacrum.

    Thanks for keeping this investigation going!

  7. Jeffrey Kaye says:

    According to the CIA’s own public account:

    Under the provisions of the National Security Act of 1947, the National Security Council (NSC) and the Central Intelligence Agency (CIA) were created. The Act charged the CIA with coordinating the nation’s intelligence activities and correlating, evaluating, and disseminating intelligence that affects national security. The Agency also was tasked to perform other duties and functions related to intelligence that the NSC might direct.

    We know, or believe we know the torture program was under one or more Secret Access Programs. “The National Security Act of 1947 and E.O. 12958 authorize the DCI to create SAPs pertaining to intelligence activities in accordance with Director of Central Intelligence Directive 3/29. The DCI is not authorized to create SAPs for military operational, strategic and tactical programs that are under the cognizance of the DoD.” The latter must be authorized by the Secretary of Defense or or Deputy Secretary of Defense, in accordance with E.O. 12958.

    The CIA’s SAP(s) were certainly created by CIA itself. The NSC is, by this point, a rump executive “agency” whose sole purpose, outside of consultation, is to provide “plausible denial” for the President (or Veep?). The key is to understand that this didn’t all start with 9/11 or the Glove Off MON. Then it all begins to make a dark sort of sense.

    One must remember, by the way, that many programs are approved on oral understandings only. MKULTRA was that way. And way back in OSS times, I have documents in my possession, about which more to come in future, that outright claim that certain assignments and programs, including use of poisons, BW, etc. were communicated orally, and not by written directive or order. I know OSS was long ago, but I believe that became SOP.

    When you have such high levels of secrecy, you by definition have no law. At most you have a smokescreen that masks as law, but is really its simulacrum.

    Thanks for keeping this investigation going!

    • wallace says:

      quote”I know OSS was long ago, but I believe that became SOP.”unquote

      Col. Fletcher Prouty would be pleased. Meanwhile Ed Landsdale would probably whack you.

  8. 5010.38 says:

    Very handy, those SAP procedures. The analogous SAP authorizing surveillance of Tamerlan Tsarnaev will turn out to be case c., protection of foreign intelligence information.

    The SAP continues. The cleanup crew is hard at work. When the criminal masterminds shot MIT campus cop Collier, the Officer Tippit of Boston, his buddy Dick Donohue got there right away. Then Dick Donohue got shot by a lawman. Go figure. That big gunfight, nobody else on the blue team got hit. Another cop, John Moynihan, saved Donohue’s life to the usual mawkish acclaim. Career-limiting move. Moynihan just got his brains blown out by a corny desperado.

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