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2nd Circuit: President Can Declare Proof that President Authorized Torture Secret

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As I showed in a series of posts several weeks ago, the Obama Administration appealed Judge Alvin Hellerstein’s order to release a reference to–or at least a summary of it–the President’s September 17, 2001 “Gloves Come Off” Memorandum of Notification the government used to authorize the torture program and a whole slew of other things. (post 1, post 2, post 3, post 4, post 5, post 6, post 7, post 8) The 2nd Circuit just sided with the government, finding that the MON constituted an intelligence activity that could be classified under EO 12,958.

The Government contends that the information redacted from the OLC memoranda may be withheld from disclosure under either FOIA Exemption 1 or 3. In our view, Exemption 1 resolves the matter easily.4 Exemption 1 permits the Government to withhold information “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” if that information has been “properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). The Government contends that the redacted information was properly classified under Executive Order No. 12,958, as amended, which authorized the classification of information concerning “intelligence activities (including special activities), intelligence sources or methods, or cryptology.”

[snip]

Based on our ex parte and in camera review of the unredacted OLC memoranda and the Government’s classified declarations, we agree with the Government that the redacted information was properly classified because it pertains to an intelligence activity.

Of particular note, the Circuit held that letting Americans know who and how the torture program was authorized would reveal the existence and scope of a still-ongoing program.

We give substantial weight to the Government’s declarations, which establish that disclosing the redacted portions of the OLC memoranda would reveal the existence and scope of a highly classified, active intelligence activity.

Though it did suggest that the parts of the program put at jeopardy would be the other activities authorized by the MON–things like targeted killings and use of SWIFT and the “purchasing” of some Middle East intelligence services.

It is true that the Government has disclosed significant aspects of the CIA’s discontinued detention and interrogation program, but its declarations explain in great detail how the withheld information pertains to intelligence activities unrelated to the discontinued program.

Note, though: this passage is as close as the opinion comes to addressing my point–that the government already acknowledged the existence of the MON in its Vaughn Index in this case (not to mention via John Rizzo’s blabbing about it). Which is to say the court didn’t acknowledge it at all.

The CIA has already revealed the existence of this MON. The only thing that keeping it secret does is shield President Bush for all the torture committed in his name.

Government Invokes Valerie Plame to Argue CIA Acknowledgment that Bush Authorized Torture Is Not Official Acknowledgment

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As you’ll recall, back in April I went on a week-long rant about the great lengths–including submitting a secret declaration from the National Security Advisor–the Obama Administration had gone to hide a short reference to the September 17, 2001 “Gloves Come Off” Memorandum of Notification. In doing so, it appears the Obama Administration hid George Tenet’s invocation of the Presidential MON that authorized the capture and detention of terrorists but which the Bush Administration used as its authorization to torture those alleged terrorists. (post 1, post 2, post 3, post 4, post 5, post 6, post 7)

In a classified hearing on March 9, the government claimed that releasing the reference in question would “reveal[] for the first time the existence and the scope of” what now clearly appears to be the MON. After I went on my rant, the ACLU informed the Circuit Court that the claim might be false. If the reference was indeed to the MON, ACLU wrote, then the CIA had already revealed that the September 17, 2001 MON authorized torture in this litigation.

If true, it may be relevant to this Court’s consideration that the CIA officially acknowledged the existence of that memorandum in this very litigation.

In response to appellees’ Freedom of Information Act request, the CIA identified as responsive “a 14-page memorandum dated 17 September 2001 from President Bush to the Director of the CIA pertaining to the CIA’s authorization to detain terrorists” and “to set up detention facilities outside the United States.” Eighth Declaration of Marilyn A. Dorn

On Friday, the government responded, effectively saying that Marilyn Dorn’s declaration doesn’t count as official acknowledgement of the MON.

For the reasons set forth in the Government’s classified filings, the disclosures identified in plaintiffs’ letter, including the information provided in the Dorn declaration, do not constitute an official disclosure of the information redacted from the OLC memoranda.

Notably, in its discussion of the cases which it cited to support its claim that Dorn’s description of the MON doesn’t count, it also included language that would address John Rizzo’s extensive blabbing about the MON as well as Glenn Carle’s CIA Publication Review Board-approved reference to CIA having received a Finding covering torture (neither of which the ACLU mentioned in its letter). But look what case they cited to make that argument.

This Court applies “[a] strict test” to claims of official disclosure. Wilson v. CIA, Read more →

“The Gloves Come Off” Memorandum of Notification

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Operational flexibility: This is a highly classified area. All I want to say is that there was “before” 9/11 and “after” 9/11. After 9/11 the gloves come off.

-Cofer Black, 9/11 Congressional Inquiry, September 26, 2002

When Cofer Black, the main author of the plan laid out in the September 17, 2001 Memorandum of Notification that appears to be at issue in the FOIA dispute between the CIA and White House and the ACLU (post 1, post 2, post 3, post 4, post 5), testified before the 9/11 Congressional Inquiry, he described the expanded operational flexibility CIA’s counterterrorism efforts gained after 9/11 by saying “the gloves come off.”

As this post shows, the legal means by which “the gloves come off” was the MON in question. Thus, rather than referring to the MON by its date, perhaps the best way for us to think of it is as the “Gloves Come Off MON.”

Before we get into what the MON did, here’s what the National Security Act, as amended, says such MONs are supposed to do. The NSA requires the President to notify congressional intelligence and appropriations committees (or, in rare cases, the Gang of Eight) of any covert operations he has authorized the CIA to conduct. Some important excerpts:

SEC. 503. [50 U.S.C. 413b] (a) The President may not authorize the conduct of a covert action by departments, agencies, or entities of the United States Government unless the President determines such an action is necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States, which determination shall be set forth in a finding that shall meet each of the following conditions:

(1) Each finding shall be in writing, unless immediate action by the United States is required and time does not permit the preparation of a written finding, in which case a written record of the President’s decision shall be contemporaneously made and shall be reduced to a written finding as soon as possible but in no event more than 48 hours after the decision is made.

[snip]

(5) A finding may not authorize any action that would violate the Constitution or any statute of the United States.

[snip]

(d) The President shall ensure that the congressional intelligence committees, or, if applicable, the Members of Congress specified in subsection (c)(2) [the Gang of Eight], are notified of any significant change in a previously approved covert action, or any significant undertaking pursuant to a previously approved finding, in the same manner as findings are reported pursuant to subsection (c).

As used in this title, the term ‘‘covert action’’ means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include—

(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;

Basically, the MONs are supposed to provide an up-to-date written notice of all the  potentially very embarrassing things the CIA is doing. And given that MONs cannot authorize unconstitutional or illegal (within the US) actions, it should impose some legal limits to covert operations.

Dick Cheney, in a 1989 speech complaining about Congressional overreach in foreign policy (Charlie Savage just posted this), described how this requirement to inform Congress of covert ops provided a way for Congress to oppose such actions by defunding any ongoing ones.

The 1980 law [requiring notice] did not challenge the President’s inherent constitutional authority to initiate covert actions. In fact, that law specifically denied any intention to require advance congressional approval for such actions.

[snip]

Any time Congress feels that an operation is unwise, it may step in to prohibit funds in the coming budget cycle from being used for that purpose. As a result, all operations of extended duration have the committees’ tacit support.

That’s the understanding of the limitations MONs might impose on Presidents that Cheney brought to discussions of the Gloves Come Off MON.

Bob Woodward provides an extensive discussion of what George Tenet and Cofer Black requested in this MON in Bush at War.

At the heart of the proposal was a recommendation that the president give what Tenet labeled “exceptional authorities” to the CIA to destroy al Qaeda in Afghanistan and the rest of the world. He wanted a broad intelligence order permitting the CIA to conduct covert operations without having to come back for formal approval for each specific operation. The current process involved too much time, lawyering, reviews and debate. The CIA needed new, robust authority to operate without restraint. Tenet also wanted encouragement from the president to take risks.

Another key component, he said, was to “use exceptional authorities to detain al Qaeda operatives worldwide.” That meant the CIA could use foreign intelligence services or other paid assets. Tenet and his senior deputies would be authorized to approve “snatch” operations abroad, truly exceptional power.

Tenet had brought a draft of a presidential intelligence order, called a finding, that would give the CIA power to use the full range of covert instruments, including deadly force. For more than two decades, the CIA had simply modified previous presidential findings to obtain its formal authority for counterterrorism. His new proposal, technically called a Memorandum of Notification, was presented as a modification to the worldwide counterterrorism intelligence finding signed by Ronald Reagan in 1986. As if symbolically erasing the recent past, it superseded five such memoranda signed by President Clinton.

Woodward describes other things included in Tenet’s request:

  • Providing hundreds of millions to “heavily subsidize Arab liaison services,” effectively “buying” key services in Egypt, Jordan, and Algeria
  • Equipping Predator drones with Hellfire missiles for lethal missions to take out top al Qaeda figures Read more →

The CIA’s NSC’s President’s Torture Program

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One more diversionary post before I delve into why the Administration is so worried about releasing a short phrase that, I suspect, acknowledges that George Bush’s September 17, 2001 Memorandum of Notification authorized the torture program.

National Security Advisor Jim Jones submitted a declaration supporting Administration efforts to keep the authorization behind the torture program secret

I want to reflect on what it means that then-National Security Advisor Jim Jones submitted a declaration–sometime in Fall 2009–to keep this short phrase hidden. The government revealed that, though without hinting at what Jones had to say, in the October 29, 2009 closed hearing with Judge Alvin Hellerstein.

MR, LANE . We think the first Issue before we get to documents is your Honor had asked us to specifically identify the second declarant. There is a second declaration in this case. And we wanted to put that on the record that that declaration is from James L. Jones, Assistant to the President for National Security and National Security Advisor,

AUSA Sean Lane then goes on to make clear that Jones’ declaration argues why Hellerstein should withhold the few word acknowledgment that the Memorandum of Notification authorized the torture program.

THE COURT: Both [Jones’ declaration and a second sealed one from CIA Associate Information Review Office Wendy Hilton] support the argument for maintenance of the redactions.
MR. LANE: Correct, your Honor. They both address what the government ties been calling “the Intelligence method” withheld from the two OLC memos, and the Court has been referring to as “The source of the CIA’s authority.”

So it’s not just that–as I inaccurately suggested the other day–that the CIA is trying to keep this short phrase noting that the President authorized the torture program secret. The National Security Advisor–for all intents and purposes, the President himself–is going to some lengths to keep that phrase secret as well.

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The Memorandum of Notification the CIA Pretends Has Never Been Acknowledged

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“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.”

[snip]

“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.”

–Glenn Carle, The Interrogator: An Education, approved by CIA’s Publication Review Board prior to its summer 2011 publication

Yesterday, I described how the CIA appears to be refusing to release via FOIA any mention–or even a substitution mention–of references to the September 17, 2001 Presidential Memorandum of Notification the government claims authorizes torture and a bunch of other activities.

In this post I’d like to deal with AUSA Tara LaMorte’s March 9, 2012 claim that what I believe to be the MON has never been acknowledged before.

And that’s important because here, the references to [half line redacted] contained in the OLC memos reveals for the first time the existence and the scope of [1.5 lines redacted] That has never before been acknowledged, and would be acknowledged for the first time simply by revealing [few words redacted] in the OLC memos.

Now, as it happens, the CIA made an extensive declaration about the MON in a statement from Marilyn Dorn, the CIA’s Information Review Officer, back in 2007. The description of it–item 61–starts on page 34.

The declaration is actually pretty funny. ACLU had asked for any declarations signed by the President authorizing the torture program. There is none. So in her declaration, Dorn as much as said this MON–which doesn’t mention interrogation–was the MON in question.

Item No. 61 requested a “Directive signed by President Bush that grants CIA, the authority to set up detention facilities outside the United States and/or outlining interrogation methods that may be used against Detainees.” The CIA did not locate a document signed by President Bush outlining interrogation methods that may be used against detainees. The CIA did locate one document signed by President Bush that pertains to the CIA’s authorization to set up detention facilities outside the United States. The document responsive to Item No. 61 is a 14-page memorandum dated 17 September 2001 from President Bush to the Director of the CIA pertaining to the CIA’s authorization to detain terrorists.

So in response to ACLU’s FOIA, which basically said, “give us the legally-required MON that authorized torture,” Dorn said, “we don’t have one, but here’s what we’ve been using for all these years.” That’s pretty significant acknowledgment of what kind of authorization underlies the torture program.

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The CIA Continues to Cover Up Bush’s Authorization of Torture

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Reading the unredacted sections of this ex parte hearing on the ACLU’s torture FOIA leads me to suspect the CIA is trying to keep hidden all mention of Bush’s September 17, 2001 Memorandum of Notification authorizing a range of counterterrorism activities.

Take a look, first of all, at the discussion about Judge Alvin Hellerstein’s problems treating something that is redacted in the “second and fourth” OLC memos as an Exemption 3 sources and methods withholding. He objected, apparently, because the redacted information was not a method, but instead the source of authority.

Judge Carney: Judge Hellerstein rejected the characterization of that as a method, and said instead this is a source of authority.

[snip]

JUDGE CARNEY: I have a follow up, if I may.

So if I understand the government’s position, your position Is the material redacted from the second and fourth OLC memos was properly exempt under Exemption 1, and that Judge Hellerstein’s ruling then was somewhat incomplete in that he rejected and demanded that you use an alternative characterization under–he rejected it under Exemption 3. He was saying this was, a source of authority, not a method.

[snip]

MS. LA MORTE: I don’t recall an expressed ruling in the transcript about Exemption 1. I think what Judge Hellerstein’s thought process was, was that this was a source of authority, and that’s it, not an activity, not a method.

Now, we know what the source of authority for the torture program was thanks to reporting on it–it was purportedly authorized by Bush’s September 17, 2001 Memorandum of Notification. Here’s how the NYT described it as early as 2006.

According to accounts by three former intelligence officials, the C.I.A. understood that the legal foundation for its role had been spelled out in a sweeping classified directive signed by Mr. Bush on Sept. 17, 2001. The directive, known as a memorandum of notification, authorized the C.I.A. for the first time to capture, detain and interrogate terrorism suspects, providing the foundation for what became its secret prison system.

LaMorte’s descriptions introducing these particular OLC redactions make it fairly clear that the authorization in question is the one that authorized the capture and detention of top Al Qaeda figures–that is, the September 17 MON.

Ms. La Morte: [In response to a question about sources and methods redactions] That’s absolutely correct. So, for example, in the OLC memos, [1.5 lines redacted] So that program was a program where the CIA was authorized to capture international terrorists abroad, detain them in foreign countries, and interrogate them using not only standard methods but enhanced interrogation techniques.

But that detention, that CIA detention and interrogation program, was a program that [3 paragraphs redacted]

I love how she makes a point of calling this a “CIA detention and interrogation” program; we know that the finding that authorized the program actually didn’t lay out the interrogation program. She seems awfully concerned about insisting that the MON authorized not just capture and detention, but also interrogation; I’ll explain a likely source of her concern in a follow-up post.

She goes on to suggest that if these passages in the OLC memos were revealed, it would amount to the first time this content–presumably the Presidential MON–were revealed.

And that’s important because here, the references to [half line redacted] contained in the OLC memos reveals for the first time the existence and the scope of [1.5 lines redacted] That has never before been acknowledged, and would be acknowledged for the first time simply by revealing [few words redacted] in the OLC memos.

I’ll rip this claim to shreds in a subsequent post. But for the moment I’d like to point to what I think are the redactions in question.

As noted above, Judge Carney said these redactions are in the second and fourth OLC memos. As part of the same exchange, Judge Richard Wesley makes it clear they are in one of the March 10 and the March 30 memos.

Page 29 of the March 10, 2005 Techniques memo includes this passage:

Interrogators (and other personnel deployed as part of this program) are required to review and acknowledge the applicable interrogation guidelines. See Confinement Guidelines at 2; Interrogation Guidelines at 2 (“The Director, DCI Counterterrorist Center shall ensure that all personnel directly engaged in the interrogation of persons detained pursuant to the authorities set forth in [half line redacted]

And in addition to the large redactions on page 4 and 5 of the March 30, 2005 CAT memo–which appear to provide general background on the torture program and therefore might address authorization–page 7 includes a reference to the same Tenet Guidelines.

Any interrogation plan that involves the use of enhanced techniques must be reviewed and approved by “the Director, DCI Counterterrorist Center, with the concurrence of the Chief, CTC Legal Group.” George J. Tenet, Director of Central Intelligence, Guidelines on Interrogations Conducted Purusant to the [half line redacted].

Here’s the Guidelines on Interrogation in question. You will be thoroughly unsurprised the authorities referenced in the title, as well as most of the paragraph that lays out those authorities, are redacted.

As I noted, I will have a follow-up post or two on this one. But it appears that amid the big argument whether waterboarding is an intelligence method or not is one the CIA is fighting just as aggressively: whether or not it has to reveal the already widely-reported fact that George Bush unilaterally authorized all this torture on September 17, 2001.

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