I’d like to return to this post, in which I tried to figure out which 2003 OLC opinion approved–according to Michael Hayden–waterboarding.

Michael Hayden said something that confused me today on Fox News. When asked whether he thought waterboarding is torture, he replied simply that DOJ had said it was not.

Question: Are you satisfied that waterboarding is not torture?

HAYDEN: I’m satisfied that the Justice Department, in a series of opinions — ‘02, ‘03, ‘05 — said that it was not. Now…

See, we know that DOJ addressed waterboarding specifically in 2002 and 2005 in the memos released last week. 

But 2003?

We may well have found our answer in the IG Report. As I’ve been chronicling, John Yoo helped the Counterterrorism Center develop a "Legal Principles" document in 2003 that included waterboarding among permissible techniques. Scott Muller would claim Yoo’s involvement in the process constituted DOJ agreement with the principles espoused in the document. But in 2004, Jack Goldsmith asserted that the Legal Principles document, "did not and do not represent an opinion or a statement of the views" OLC. 

So it appears likely that Michael Hayden claimed that OLC had written an opinion on waterboarding that OLC claims does not constitute an opinion. If so, then the squabble between OLC and CIA over that document remains active (or at least did, as of earlier this year, when Hayden still headed the CIA).

But there’s another part of the earlier post I’d like to return to: a 2003 "secret memo" from the White House "explicitly endorsing" CIA’s use of torture.

Here’s the WaPo’s description of this 2003 memo, from last year when we were all trying to elect Barack Obama President. 

The Bush administration issued a pair of secret memos to the CIA in 2003 and 2004 that explicitly endorsed the agency’s use of interrogation techniques such as waterboarding against al-Qaeda suspects — documents prompted by worries among intelligence officials about a possible backlash if details of the program became public.

Now that we know of the "Legal Principles" document, I don’t think this is what Hayden referred to, since there was also a 2004 document and Hayden didn’t mention a 2004 OLC endorsement of torture (which is all the more remarkable, given that Daniel Levin did authorize the use of waterboarding in an August 2004 letter).

Why doesn’t this 2003 document–or at least mention of the White House’s formal endorsement of torture–appear in the IG Report? Granted, it might appear in one of the redacted sections, such as the redacted part of paragraph 25 (which starts, "The statutory basis for CIA’s involvement in detentions and interrogations is [redacted] the National Security Act of 1947"). I suspect at least some of the redacted bits describe the September 17, 2001 Finding that authorized the program as a whole; it might be logical to invoke the specific affirmation of torture that followed that Finding in the same section as it would presumably be related, legally.

But why doesn’t it appear in either of these two paragraphs, describing "Notice to and Consultation with Executive and Congressional Officials"?

In early 2003, CIA officials, at the urging of the General Counsel, continued to inform senior Administration officials and the leadershipof the Congressional Oversight Committees of the then-current status of the CTC Program. The Agency specifically wanted to ensure that these officials and the Committees continued to be aware of and approve CIA’s actions, The General Counsel recalls that he spoke and met with White House Counsel and others at the NSC, as well as DoJ’s Criminal Division and Office of Legal Counsel beginning in December 2002 and briefed them on the scope and breadth of the C’l’C’s Detention and Interrogation Program.

[snip]

On 29 July 2003, the DCI and the General Counsel provided a detailed briefing to selected NSC Principals on CIA’s detention and interrogation efforts involving "high value detainees," to include the expanded use of EITs.28 According to a Memorandum for the Record prepared by the General Counsel following that meeting, the Attorney General confirmed that DoJ approved of the expanded use of various EITs, including multiple applications of the waterboard.29 The General Counsel said he believes everyone in attendance was aware of exactly what CIA was doing with respect to detention and interrogation, and approved of the effort.

Tenet requested the written policy approval shortly after Bush, in a June 26 statement on the Convention Against Torture, said he supported "prosecuting all acts of torture." And Tenet got his written approval within days.

Tenet first pressed the White House for written approval in June 2003, during a meeting with members of the National Security Council, including Rice, the officials said. Days later, he got what he wanted: a brief memo conveying the administration’s approval for the CIA’s interrogation methods, the officials said. 

Which would mean Tenet briefed some of the same people involved in the July 29 briefing a month earlier. And then, a few days later, he got written approval for torture from the President. So this all happened about a month before the July 29 briefing that the IG Report mentions twice.

Yet the IG Report doesn’t mention it (at least not in the declassified sections) at all.