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?
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.
One of just three issues this Playboy interview [marginally SFW] with Dick Cheney pressed him on (the other two being whether Bush misjudged Putin and whether Cheney’s father loved him) was whether President Bush had been briefed on the torture program.
James Rosen starts by asking whether Bush was briefed on the actual methods.
You have become publicly identified with the so-called enhanced interrogation techniques that CIA officers used when questioning suspected terrorists. Your critics call those techniques torture. To your knowledge, was President Bush briefed about the actual methods that were to be employed?
I believe he was.
It would have been useful had Rosen actually read the SSCI Torture Report, because even that explains that Bush was briefed — in 2006. “[T]he president expressed concern,” the report noted, “about the ‘image of a detainee, chained to the ceiling, clothed in a diaper, and forced to go to the bathroom on himself.”
Rosen then presents the disagreement between John Rizzo and George Tenet, who have said Bush wasn’t briefed, and the President himself. Cheney responds by describing a specific, undated briefing in Condi’s office.
We ask because in Decision Points, the former president’s 2010 memoir, he recalls having been briefed on the EITs. Yet former CIA general counsel John Rizzo, in his 2014 memoir, Company Man, disputes that and says that he contacted former CIA director George Tenet about it, after reading the president’s book, and that Tenet backs him up in the belief that Bush was not briefed.
No, I’m certain Bush was briefed. I also recall a session where the entire National Security Council was briefed. The meeting took place in Condi Rice’s office—I don’t think Colin Powell was there, but I think he was briefed separately—where we went down through the specific techniques that were being authorized.
Rather than pointing out that Cheney doesn’t even say Bush was at that briefing in Condi’s office (or asking for a date, which I suspect is the real secret both Bush and the CIA are trying to keep), Rosen simply asks why Cheney is certain. He then raises James Risen’s account of Bush being given plausible deniability, which Cheney quickly turns into an assessment of whether Risen has credibility rather than providing more details on when and how Bush was briefed.
Why do you say you’re certain Bush was briefed?
Well, partly because he said he was. I don’t have any doubt about that. I mean, he was included in the process. I mean, that’s not the kind of thing that we would have done without his approval.
To that point, New York Times reporter James Risen wrote in State of War: The Secret History of the CIA and the Bush Administration, published in 2006, “Cheney made certain to protect the president from personal involvement in the internal debates on the handling of prisoners. It is not clear whether Tenet was told by Cheney or other White House officials not to brief Bush or whether he made that decision on his own. Cheney and senior White House officials knew that Bush was purposely not being briefed. It appears that there was a secret agreement among very senior administration officials to insulate Bush and to give him deniability.”
I don’t have much confidence in Risen.
That’s not the question. Is what he alleges here true or false?
That we tried to have deniability for the president?
I can’t think of a time when we ever operated that way. We just didn’t. The president needed to know what we were doing and sign off on the thing. It’s like the terrorist surveillance program. You know, one of the main things I did there was to take Tenet and National Security Agency director Michael Hayden in hand and get the president’s approval for what we were doing, and there’s a classic example why I don’t believe something like this. The president wanted personal knowledge of what was going on, and he wanted to personally sign off on the program every 30 to 45 days. To suggest that somehow we ran a system that protected the president from knowledge about the enhanced interrogation techniques, I just—I don’t think it’s true. I don’t believe it.
I find Cheney’s invocation of the dragnet really, really interesting. After all, even according to Bush’s memoir, he didn’t know key details about the dragnet. Cheney told him it was going to expire on March 10 that day. Moreover, when Jim Comey briefed him the following day, he learned of problems that Cheney and others had kept from Bush.
Thus, Cheney’s invocation of the dragnet is actually a documented example of Bush not being adequately briefed.
Plus, it’s interesting given the timing. If I had to guess at this point, I would say that Bush was likely briefed on details of torture in 2004, in the wake of the Abu Ghraib scandal, not 2006. Indeed, that may explain the 7 week delay between the time Tenet asked for reaffirmation of torture approval and when it actually got fully approved — not to mention Tenet’s still inadequately explained resignation (in Tenet’s memoir, he says it was because of the “Slam Dunk” comment attributed to him in Bob Woodward’s book many weeks earlier).
Which brings us back to Cheney invoking a vaguely remembered briefing, this one in the Oval Office.
But can you say as a fact “I know that’s not true,” rather than having to surmise?
I can remember sitting in the Oval Office with deputy national security advisor Stephen Hadley and others—I think others were in there—where we talked about the techniques. And one of the things that was emphasized was the fact that the techniques were drawn from that set of practices we used in training our own people. I mean, we were not trying to hide it from the president. With all due respect, I just don’t give any credence to what Risen says there.
Cheney’s got nothing — or at least nothing he’s willing to share. And certainly nothing to document Bush being briefed before torture started.
Which is, again, what I suspect to be the issue: Bush was briefed, maybe even before the 2006 briefing the Torture Report documents. But not before the bulk of the torture happened.
The FBI Special Agent who investigated the Merlin leak, Ashley Hunt, testified on Wednesday.
Much of the evidence she entered into the record pertained to the (remarkably limited) phone records between James Risen and Jeffrey Sterling between 2003 and 2007. While there were longer calls when Sterling lived in Missouri in 2004, before Risen went to the CIA with a story he claimed was ready to publish in April 2003, there were just a few minutes of conversation between Risen and Sterling.
One of the last things the government did while Special Agent Hunt was on the stand, however, was enter Stipulation 12, which entered phone records she had identified that took place between Jeffrey Sterling and another journalist. The records dated to around April 2003, but they were all very limited in length and some were even placed to the 800-number for the reporter’s newspaper.
The reporter in question was Ronald Kessler, who was then with the Los Angeles Times.
Kessler was also, at that time, finishing up a book, CIA at War (which would be released in October 2003), that according to the Senate Intelligence Committee Torture Report, was “blessed” by George Tenet and completed with the “assistance” of the CIA.
In seeking to shape press reporting on the CIA’s Detention and Interrogation Program, CIA officers and the CIA’s Office of Public Affair (OPA) provided unattributed background information on the program to journalists for books, articles, and broadcasts, including when the existence of the CIA’s Detention and Interrogation Program was still classified. When the journalists to whom the CIA had provided background information published classified information, the CIA did not, as a matter of policy, submit crime reports. For example, as described in internal emails, the CIA’s [redacted] never opened an investigation related to Ronald Kessler’s book The CIA at War, despite the inclusion of classified information, because “the book contained no first time disclosures,” and because “OPA provided assistance with the book.” Senior Deputy General Counsel John Rizzo wrote that the CIA made the determination because the CIA’s cooperation with Kessler had been “blessed” by theCIA director. [footnotes omitted]
The Senate Torture Report went on to enumerate the inaccurate information Kessler had reported that CIA officials were also spreading. The report also explained that CIA “cooperated” with another Kessler book in 2007.
In other words, over the period of at least 4 years that coincided with the Merlin investigation, Ronald Kessler was considered by the CIA to be one of the most amenable reporters to CIA propaganda, all the way up to George Tenet.
Kessler was, according to the Torture Report, a guy the CIA would reach out to to spread their propaganda.
And that’s the best the government could do as far as implicating Jeffrey Sterling in speaking with reporters other than James Risen.
ACLU Executive Director Anthony Romero has what I’m sure he believes to be an out of the box op-ed in the NYT. In it, he calls on President Obama to issue pardons for all those who masterminded the torture program.
But with the impending release of the report from the Senate Select Committee on Intelligence, I have come to think that President Obama should issue pardons, after all — because it may be the only way to establish, once and for all, that torture is illegal.
But let’s face it: Mr. Obama is not inclined to pursue prosecutions — no matter how great the outrage, at home or abroad, over the disclosures — because of the political fallout. He should therefore take ownership of this decision. He should acknowledge that the country’s most senior officials authorized conduct that violated fundamental laws, and compromised our standing in the world as well as our security. If the choice is between a tacit pardon and a formal one, a formal one is better. An explicit pardon would lay down a marker, signaling to those considering torture in the future that they could be prosecuted.
Mr. Obama could pardon George J. Tenet for authorizing torture at the C.I.A.’s black sites overseas, Donald H. Rumsfeld for authorizing the use of torture at the Guantánamo Bay prison, David S. Addington, John C. Yoo andJay S. Bybee for crafting the legal cover for torture, and George W. Bush and Dick Cheney for overseeing it all.
There are many many problems with this proposal, some of which Kevin Jon Heller hits in a piece that notes this would not be pardon, but blanket amnesty.
But Romero’s proposal (if it is intended as anything beyond a modest proposal meant to call Obama’s bluff) fundamentally misunderstands the situation — a situation the ACLU has been at the forefront in exposing.
Obama would not — categorically cannot — admit that what Tenet and Bush and Cheney did on torture is illegal. That’s because he has authorized war crimes using the very same Presidential Finding as the Bush Administration used to authorized torture.
As I have laid out at length, the torture program started as a covert op authorized by the September 17, 2001 Gloves Come Off Memorandum of Notification. And along with torture, that Finding also authorized drone strikes. The drone strikes that Obama escalated.
Just 3 days after he assumed the Presidency, a drone strike Obama authorized killed as many as 11 civilians, including one child, and gravely injured a 14 year old boy, Farim Qureshi. And several years into his Administration, Obama ordered the CIA to kill American citizen Anwar al-Awlaki with no due process. As far as we know, both of those things were done using that very same Finding, the Finding that Romero would like Obama to declare authorized war crimes.
When the 2nd Circuit ruled the President — President Obama, not President Bush — could keep a short phrase hidden making it clear torture had been authorized by that Finding in ACLU’s very own torture FOIA, it did so because the Finding still authorized intelligence activities. The Finding authorizing torture was still active — President Obama was still relying on it — at least as recently as 2012.
For Obama to pardon Bush, Cheney, and Tenet, he would have to admit that the same Finding that he used to authorize drone strikes that have killed hundreds of civilians authorized war crimes. There is absolutely zero chance Obama is going to do that.
This will be a closer working thread on documents released yesterday.
X: Initial Dragnet Application (prior to July 14, 2004)
(2) From the start, the government said they wanted to disseminate the dragnet info, perhaps to tag into FBI’s investigative authorities.
(2) The footnote defining metadata hides all the stuff not associated with “standard e-mails.”
(4) The application discusses the briefing I discussed here, attended by (among others) John Brennan.
(5) The application is not submitted by a lawyer, but by Michael Hayden.
(6) The government hasn’t released a Tenet submission; back in November it hid that this submission was from him.
(16) ODNI maintains that the fictional example of metadata is classified.
(18) Originally access was restricted by making the metadata accessible only by 2 admin login accounts. That’s probably a carry-over from the compartments of the illegal program.
(20) RAS approval assigned to the same 7 authorizers that were in place for the beginning of the phone dragnet in 2006.
(21) They’re hiding at least one kind of Internet metadata.
(23) Metadata originally accessible for only 18 months. Is that what they used for the illegal dragnet?
Y. Memo of Law in Support of Original Dragnet Application, before July 14, 2004
(4) The government claims that only email metadata related to terrorism will be seen. By definition, that means anything returned in a query would be related to counterterrorism and therefore game for dissemination.
(4) This is the jist of the illegal use of PRTT for the dragnet:
Nevertheless, it involves nothing more than adapting the traditional tools of FISA to meet an unprecedented challenge and does so in a way that promotes both of the twin goals of FISA: facilitating the foreign-intelligence collection needed to protect American lives while at the same time providing judicial oversight to safeguard American freedoms.
This claim is followed by a 5-page redaction, which is mighty interesting as it would have to explain why this judicial review was so useful.
(9) Footnote 5 again makes it clear that this involves email and other online communications.
(12) This language is remarkable for a secret court document.
Collecting and archiving meta data is thus the best avenue for solving this fundamental problem: although investigators do know know exactly where the terrorists’ communications are hiding in the billions of bits of data flowing through the United States today, we do know that they are there, and if we archive the data now, we will be able to use it in a targeted way to find the terrorists tomorrow.
(20) This language is particularly important given debates about USA Freedom.
Nothing in the definitions of pen registers or trap and trace devices requires that the “instrument” or “facility” on which the device is placed carry the communications solely of a single user.
(20) This section really tries to constrain the Court.
Unlike certain other certifications made in other contexts under the statute, see, e.g., U.S.C. § 1805(a)(5), FISA does not subject the certification of relevance to any review by the Court.
In a piece that gets at some of the points of leverage between the White House and CIA over torture, Mark Mazzetti describes George Tenet’s effort to “challenge” the torture report.
It suggests Brennan’s close ties to Tenet — Brennan was once Tenet’s Chief of Staff — led the CIA Director to reach out to Tenet to lead pushback. It describes how Brennan’s close ties to Obama Chief of Staff Denis McDonough from when he served as White House Counterterrorism Czar led McDonough to intervene when Dianne Feinstein tried to require any CIA review to take place in Senate Intelligence Committee space.
All that’s beside the real source of CIA’s power over the White House — the fact that torture operated as a Presidentially-authorized covert op for years, as has the drone program, which means CIA has the ability to implicate both George Bush personally (and Obama, in illegal drone strikes), as well as the Office of the President more generally.
My favorite detail, however, is that Cofer Black has also been involved in this pushback campaign.
Just after the Senate Intelligence Committee voted in April to declassify hundreds of pages of a withering report on the Central Intelligence Agency’s detention and interrogation program, C.I.A. Director John O. Brennan convened a meeting of the men who had played a role overseeing the program in its seven-year history.
The spies, past and present, faced each other around the long wooden conference table on the seventh floor of the C.I.A.’s headquarters in Northern Virginia: J. Cofer Black, head of the agency’s counterterrorism center at the time of the Sept. 11 attacks; the undercover officer who now holds that job; and a number of other former officials from the C.I.A.’s clandestine service. Over the speakerphone came the distinctive, Queens-accented voice of George J. Tenet.
Over the past several months, Mr. Tenet has quietly engineered a counterattack against the Senate committee’s voluminous report, which could become public next month. [my emphasis]
According to Ken Dilianian’s version of the same story, Black will not be allowed to preview the report — he’s probably among the dozen people who thought they could review it but recently learned they would not be able to.
About a dozen officials were called in recent days and told they could read the executive summary at a secure room at the Office of Director of National Intelligence, as long as they agreed not to discuss it, four former officials said.
Then, on Friday, CIA officials called them and told them that due to a miscommunication, only former CIA directors and deputy directors would be given that privilege. Former directors Michael Hayden, Porter Goss and George Tenet have been invited to read it, as have former acting directors John McLaughlin and Michael Morell.
Black’s involvement, of course, should be a story unto itself.
According to the CIA’s official version of torture, it got authorized under the September 17, 2001 Finding by language authorizing the capture and detention of top Al Qaeda officials. But they didn’t start considering torture until they picked up Abu Zubaydah at the end of March in 2002. They didn’t start torturing, the official story goes, until DOJ gave them the green light in August 1, 2002.
Why, then, would Black need to be involved in the torture pushback?
He left the Counterterrorism Director spot in May 2002, well before the torture started — at least according to the CIA version, but not the personal experience of Ibn Sheikh al-Libi and Binyam Mohamed, both of whom got tortured before Black’s departure. In his book Jose Rodriguez claims, falsely, the torture program started in June, and he led it. If this official CIA chronology is correct, Black should have had no role — and no personal interest — in the torture program.
And yet there he is with the other torturers, leading pushback.
Even in their pushback effort, then, the CIA proves that they’ve been lying for years.
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, [my emphasis]
Two years ago, at least, when he was trying to diss Congress using demonstrably false claims about the degree to which they had been briefed, John Rizzo claimed that the authority for the torture program all came directly from George Bush (Michael Hayden has said the same).
Not so today, apparently.
Steve Coll reports that Rizzo’s memoir claims Bush knew nothing about the details of torture his authorization provided the legal cover for.
Rizzo’s most remarkable account concerns President Bush. Essentially, Rizzo concludes that Bush has lately invented a memory of himself as a someone who was well informed and decisively in favor of waterboarding certain Al Qaeda prisoners, when, as far as Rizzo can tell, Bush seems not to have known at the time what the C.I.A. was doing.
In “Decision Points,” his 2010 memoir, Bush recalled that George Tenet provided a list of brutal interrogation techniques the C.I.A. proposed to use, and that Bush overruled “two that I felt went too far.” Later, when Tenet asked the President directly if he could employ waterboarding on Khalid Sheikh Mohammed, Bush wrote that he answered, “Damn right.”
Yet, according to Rizzo, “The one senior U.S. Government national security official during this time—from August 2002 through 2003—who I did not believe was knowledgeable about the E.I.T.s was President Bush himself. He was not present at any of the Principals Committee meetings … and none of the principals at any of the E.I.T. sessions during this period ever alluded to the President knowing anything about them.”
Some of the chronology of events related to the C.I.A. interrogations that Bush provides in “Decision Points” doesn’t compute, according to Rizzo. Also, Rizzo would certainly have known if Bush had banned two techniques, but Rizzo has “no idea” what Bush might have been referring to in his memoir. Throughout this period, Rizzo, as he remembers it, was in daily contact with George Tenet, who said “nothing about any conversations he had with the president about E.I.T.s, much less any instructions or approvals coming from Bush.”
Rizzo writes, “It simply didn’t seem conceivable that George [Tenet] wouldn’t have passed something like that on to those of us who were running the program.” Rizzo got in touch with Tenet while preparing “Company Man” and Tenet confirmed “that he did not recall ever briefing Bush” on specific interrogation techniques being used at C.I.A. prisons. “I have to conclude that the account in Bush’s memoir simply is wrong,” Rizzo concludes. [my emphasis]
There are, as there always are with John Rizzo’s claims, obvious gimmicks. He apparently discusses the period from August 2002 — the date when DOJ’s OLC authorized torture for Abu Zubaydah, at which point much, if not all of the techniques approved, had already been used on him — through 2003, the year before Bush issued a second authorization for the torture program in Tenet’s last days. The key authorizations from the White House came before August 2002, as the torture was happening (and Coll should review these details if he wants to review Rizzo’s memoir competently). And we know Tenet did record Bush’s authorization for the program — he did it in a document Rizzo handled.
Moreover, there are other public claims that refute Rizzo’s claim, as when Glenn Carle described being told CIA had a letter from the President authorizing it to go beyond SERE with detainees.
“We don’t do that sort of thing,” [Glenn Carle responded to a CIA Counterterrorism Center Deputy about “going beyond SERE” with a detainee].
“We do now,” Wilmington’s voice was flat. The conversation remained quiet.
“What about EO12333? We’ve never done that sort of thing. The Agency’d never do that. We’d need a finding, at least.”
“We have it.” Wilmington’s manner brightened a little. “We have a letter from the president. We can do whatever we need to do. We’re covered.” [my emphasis]
In other words, Rizzo’s claims don’t mean much (except that, goddamnit I’m going to have to read his stinking memoir).
But hey, let’s take him at his word. Because if Bush really was ignorant about the torture program, then it means the entire thing was illegal.
If CIA’s former top lawyer wants to claim the torture program was illegal, who are we to doubt him?
But to give those two background, I want to look at a passage in the Internet dragnet opinion, in which Colleen Kollar-Kotelly describes a fascinating briefing that she received in advance of authoring what Orin Kerr describes as a “quite strange” opinion.
After describing some declarations she received (including one from a person whose title remains redacted) and some questions she posed, she describes this briefing.
The Court also relies on information and arguments presented in a briefing to the Court on [redacted] which addressed the current and near-term threats posed by [redacted reference to Al Qaeda and others], investigations conducted by the Federal Bureau of investigation (FBI) to counter those threats, the proposed collection activities of the NSA (now described in the instant application), the expected analytical value of information so collected in efforts to identify and track operatives [redacted] and the legal bases for conducting these collection activities under FISA’s pen register/trap and trace provisions. 4
4 This briefing was attended by (among others) the Attorney General; [redacted] the DIRNSA; the Director of the FBI; the Counsel to the President; the Assistant Attorney General for the Office of Legal Counsel; the Director of the Terrorist Threat Integration Center (TTIC); and Counsel for Intelligence Policy.
That is, right at the beginning of her opinion, Kollar-Kotelly tells us that she had a briefing with:
On page 30, Kollar-Kotelly seems to refer to the same redacted person again, which in the context of the reference to CIA v. Sims in that footnote, seems to suggest this is a reference to CIA Director George Tenet, which suggests the redacted author of the brief she relied on was authored by Tenet. (I leave open the more tantalizing possibility that it’s someone like Dick Cheney, but highly doubt it.)
So before she approved the use of FISA’s Pen Register to collect much of the Internet metadata in the US, she had a meeting with at least one of the villains — Alberto Gonzales — of the hospital confrontation at which DOJ refused to reauthorize the Internet metadata program that was part of the President’s illegal wiretap program, and at least three of its “heroes:” Ashcroft, Mueller, and Goldsmith.
Interestingly, this meeting does not appear — at least not described as such — in the Draft NSA IG Report description of the transition to a FISC order.
After extensive coordination, DoJ and NSA devised the PRITT theory to which the Chief Judge of the FISC seemed amenable. DoJ and NSA worked closely over the following months, exchanging drafts of the application, preparing declarations, and responding to questions from court advisers. NSA representatives explained the capabilities that were needed to recreate the Authority, and DoJ personnel devised a workable legal basis to meet those needs. In April 2004, NSA briefed Judge Kollar-Kotelly and a law clerk because Judge Kollar-Kotelly was researching the impact of using PSP-derived information in FISA applications. In May 2004, NSA personnel provided a technical briefmg on NSA collection of bulk Internet metadata to Judge Kollar-Kotelly. In addition, General Hayden said he met with Judge Kollar-Kotelly on two successive Saturdays during the summer of 2004 to discuss the on-going efforts.
Was this “briefing” one of the Saturday meetings Hayden had with FISC’s Presiding Judge?
More broadly, it is important to consider the context in which the FISA Court initially approved the bulk collection. Unverified media reports (discussed above) state that bulk telephony metadata collection was occurring before May 2006; even if that is not the case, perhaps such collection could have occurred at that time based on voluntary cooperation from the telecommunications providers. If so, the practical question before the FISC in 2006 was not whether the collection should occur, but whether it should occur under judicial standards and supervision, or unilaterally under the authority of the Executive Branch.
The briefings and other historical evidence raise the question whether Congress’s repeated reauthorization of the tangible things provision effectively incorporates the FISC’s interpretation of the law, at least as to the authorized scope of collection, such that even if it had been erroneous when first issued, it is now—by definition—correct. [my emphasis]
The Internet dragnet was illegal. At least 3 of the people who conveyed the importance of authorizing this program had said so — in very dramatic fashion — less than four months before she would do so.
And yet she wrote a memo saying it was legal.
Update, 8/12/14: This application confirms that George Tenet was the redacted declaration submitter.
In the passage of David Kris’ paper that address more public transparency, he included on paragraph on covert action.
For example, the covert action statute 221 could be interpreted and applied in ways that may be extraordinarily important, but about which very, very few Members of Congress, let alone the American People, ever learn.222 The statute defines covert action to exclude “traditional” military and law-enforcement activities,223 provides that a covert action finding “may not authorize any action that would violate the Constitution or any statute of the United States,”224 and specifically warns that “No covert action may be conducted which is intended to influence United States political processes, public opinion, policies, or media.”225 Without making any comment, express or implied, on any actual or hypothetical covert action, or even acknowledging that any covert action of any kind has ever actually taken place, it is quite obvious that each of those elements of the statute could raise enormously difficult and complex interpretive questions, some of which might affect many Americans.226 Yet it might be impossible, in many cases, to explain those interpretations without revealing the most sensitive classified information. 227 
In other words, in a passage explaining the challenges and limits to making information available to the public, he implies (“without making any comment, express or implied, on any actual or hypothetical covert action, or even acknowledging that any covert action of any kind has ever actually taken place”) that CIA may have:
And while he very studiously avoids confirming these things that have all been confirmed elsewhere, his argument about the transparency of the matter has more to do with our treatment of covert ops than with transparency per se.
That is, it’s not so much that the US doesn’t and can’t know about the drone strikes, US person assassinations, and really bad propaganda the CIA has been involved in. It’s just that the government keeps the law on covert operations on the book, pretending it abides by it, while telling just the Gang of Four it doesn’t.
That is, it’s not about transparency, it’s about the legal sanction to lie about actions that everyone knows the Executive undertakes.
None of that is shocking (though it’s an interesting argument). But it’d be nice if Kris wanted to hint whether these covert actions included more politicized spying on American people.
[Tenet] called for initiating intelligence contact with some rogue states such as Libya and Syria that he said might be helpful in trying to destroy al Qaeda. For the CIA to obtain helpful information against the terrorists, they might have to get their hands dirty. — Bob Woodward, Bush at War
On September 15, 2001, George Tenet presented Cofer Black’s plan to respond to 9/11 to George Bush. It included rendering suspects to allied torturers including Egypt, partnering with rogue regimes including Bashar al-Assad’s, and ultimately capturing and torturing suspects ourselves.
On September 17, 2001, George Bush implemented that plan by signing a Memorandum of Notification reflecting vague outlines of it.
George Bush’s signature on that document led directly the torture of Ibn Sheikh al-Libi in Omar Suleiman’s hands and Binyam Mohammed’s torture in Pakistani custody, both before DOJ’s Office of Legal Counsel gave its sanction to torture. In addition, it led to Maher Arar’s torture in Assad’s hands outside the terms permissible in our rendition program.
Yet as these details of George Bush’s personal implication in torture became clear, President Obama hid it, both with repeated state secrets invocations and by hiding official confirmation of the existence of that document with Bush’s signature on it. The Administration succeeded in hiding that official confirmation by arguing — just last year! — that it was still relying on that document that also endorsed partnering with Assad. (There’s reason to believe that that document which authorized partnering with Assad also served to authorize some of our drone assassinations, including at least the first attempt against Anwar al-Awlaki.)
Meanwhile, the most independent assessment of the August 21 chemical weapons strike — from Human Rights Watch — still has the same gap as every other case does: while it concludes the CW were launched by Assad’s regime, it provides no evidence that it was launched on his orders.
The evidence examined by Human Rights Watch strongly suggests that the August 21 chemical weapon attacks on Eastern and Western Ghouta were carried out by government forces. Our basis for this finding is:
- The large-scale nature of the attacks, involving at least a dozen surface-to-surface rockets affecting two different neighborhoods in Damascus countryside situated 16 kilometers apart, and surrounded by major Syrian government military positions.
- One of the types of rockets used in the attack, the 330mm rocket system – likely Syrian produced, which appear to be have been used in a number of alleged chemical weapon attacks, has been filmed in at least two instances in the hands of government forces. The second type of rocket, the Soviet-produced 140mm rocket, which can carry Sarin, is listed as a weapon known to be in Syrian government weapon stocks. Both rockets have never been reported to be in the possession of the opposition. Nor is there any footage or other evidence that the armed opposition has the vehicle-mounted launchers needed to fire these rockets.
- The August 21 attacks were a sophisticated military attack, requiring large amounts of nerve agent (each 330mm warhead is estimated to contain between 50 and 60 liters of agent), specialized procedures to load the warheads with the nerve agent, and specialized launchers to launch the rockets
Obviously Assad has not yet publicly named — much less condemned — anyone within his regime for doing this (but then, only about 14 Americans have ever paid a price the systematic torture authorized by that Bush signature). If this deal with the Russians actually happens, naming and prosecuting the persons responsible for the August 21 attack should be part of the agreement.
But there is a fundamental problem with America launching a war against Assad for the August CW attack based on chain of command arguments (or “common sense,” as its most recent incarnation has it). That’s because, with all the legal problems surrounding any intervention on our part (especially without UN sanction, which may change under the Russian deal), there are such clear and ongoing instances where, even with clear evidence of human rights violations done under nothing but Presidential authorization, the US doesn’t hold its own responsible.
There was a time when US violations of human rights norms weren’t so clearly documented (though the definitely existed). But now that they are, to claim we have the moral authority to hold Bashar al-Assad responsible based on a chain of command argument when we won’t even hold our own responsible for partnering with him in human rights crimes is particularly problematic.
As human rights hypocrites ourselves, that makes us not even global policemen, but rather simple enforcers when it serves our geopolitical interests.