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Wheeler reports: "The fight between the CIA and the Senate Intelligence Committee over the Committee's Torture Report – which Dan Froomkin covered here – has now zeroed in on the White House."

John Brennan. (photo: file)
John Brennan. (photo: file)

The White House Has Been Covering Up the Presidency's Role in Torture for Years

By Marcy Wheeler, The Intercept

14 March 14


n May 10, 2013, John Brennan presented CIA’s response to the Senate Intelligence Committee Torture Report to the President. Official White House Photo by Pete Souza.

The fight between the CIA and the Senate Intelligence Committee over the Committee’s Torture Report – which Dan Froomkin covered here – has now zeroed in on the White House.

Did the White House order the CIA to withdraw 920 documents from a server made available to Committee staffers, as Senator Dianne Feinstein says the agency claimed in 2010? Were those documents – perhaps thousands of them – pulled in deference to a White House claim of executive privilege, as Senator Mark Udall and then CIA General Counsel Stephen Preston suggested last fall? And is the White House continuing to withhold 9,000 pages of documents without invoking privilege, as McClatchy reported yesterday?

We can be sure about one thing: The Obama White House has covered up the Bush presidency’s role in the torture program for years. Specifically, from 2009 to 2012, the administration went to extraordinary lengths to keep a single short phrase, describing President Bush’s authorization of the torture program, secret.

Some time before October 29, 2009, then National Security Advisor Jim Jones filed an ex parte classified declaration with the U.S. District Court for the Southern District of New York, in response to a FOIA request by the ACLU seeking documents related to the torture program. In it, Jones argued that the CIA should not be forced to disclose the “source of the CIA’s authority,” as referenced in the title of a document providing “Guidelines for Interrogations” and signed by then CIA Director George Tenet. That document was cited in two Justice Department memos at issue in the FOIA. Jones claimed that “source of authority” constituted an intelligence method that needed to be protected.

As other documents and reporting have made clear, the source of authority was a September 17, 2001 Presidential declaration authorizing not just detention and interrogation, but a range of other counterterrorism activities, including targeted killings.

Both former CIA Director Michael Hayden and former CIA Acting General Counsel John Rizzo have made clear that the torture program began as a covert operation. “A few days after the [9/11] attacks, President Bush signed a top-secret directive to CIA authorizing an unprecedented array of covert actions against Al Qaeda and its leadership.” Rizzo explained in 2011. One of those actions, Rizzo went on, was “the capture, incommunicado detention and aggressive interrogation of senior Al Qaeda operatives.”

As Steven Aftergood, director of the Federation of American Scientists Project on Government Secrecy, noted in 2009 – shortly after Hayden revealed that torture started as a covert operation – this means there should be a paper trail implicating President Bush in the torture program. “[T]here should be a Presidential ‘finding’ authorizing the program,” he said, “and [] such a finding should have been provided to Congressional overseers.”

The National Security Act dictates that every covert operation must be supported by a written declaration finding that the action is necessary and important to the national security. The Congressional Intelligence committees – or at least the Chair and Ranking Member – should receive notice of the finding.

But there is evidence that those Congressional overseers were never told that the finding the president signed on September 17, 2001 authorized torture. For example, a letter from then ranking member of the House Intelligence Committee, Jane Harman, to the CIA’s General Counsel following her first briefing on torture asked: “Have enhanced techniques been authorized and approved by the President?” The CIA’s response at the time was simply that “policy as well as legal matters have been addressed within the Executive Branch.”

Nevertheless, the finding does exist. The CIA even disclosed its existence in response to the ACLU FOIA, describing it as “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.” In an order in the ACLU suit, Judge Alvin K. Hellerstein confirmed that the declaration was “intertwined with” the administration’s effort to keep the language in the Tenet document hidden. When the administration succeeded in keeping that short phrase secret, all effort to release the declaration also ended.

Enduring confusion about this particular finding surely exists because of its flexible nature. As Bob Woodward described in Bush at War, CIA Director Tenet asked President Bush to sign “a broad intelligence order permitting the CIA to conduct covert operations without having to come back for formal approval for each specific operation.” As Jane Mayer described in The Dark Side, such an order not only gave the CIA flexibility, it also protected the President. “To give the President deniability, and to keep him from getting his hands dirty, the finding called for the President to delegate blanket authority to Tenet to decide on a case-by-case basis whom to kill, whom to kidnap, whom to detain and interrogate, and how.”

When George Tenet signed written guidelines for the CIA’s torture program in 2003, however, he appeared to have deliberately deprived the President of that deniability by including the source of CIA’s authorization – presumably naming the President – in a document interrogators would see. You can’t blame the CIA Director, after all; Tenet signed the Guidelines just as CIA’s Inspector General and DOJ started to review the legality of the torture tactics used against detainees like Abd al-Rahim al-Nashiri, who was threatened with a drill and a gun in violation of DOJ’s ban on mock executions.

Protecting the President?

The White House’s fight to keep the short phrase describing Bush’s authorization of the torture program hidden speaks to its apparent ambivalence over the torture program. Even after President Obama released the DOJ memos authorizing torture – along with a damning CIA Inspector General Report and a wide range of documents revealing bureaucratic discussions within the CIA about torture – the White House still fought the release of the phrase that would have made it clear that the CIA conducted this torture at the order of the president. And it did so with a classified declaration from Jones that would have remained secret had Judge Hellerstein not insisted it be made public.

As Aftergood noted, such White House intervention in a FOIA suit is rare. “The number of times that a national security advisor has filed a declaration in a FOIA lawsuit is vanishingly small,” he said. “It almost never happens.” But as ACLU Deputy Legal Director Jameel Jaffer noted of the finding, “It was the original authority for the CIA’s secret prisons and for the agency’s rendition and torture program, and apparently it was the authority for the targeted killing program as well. It was the urtext. It’s remarkable that after all this time it’s still secret.”

President Obama’s willingness to go to such lengths to hide this short phrase may explain the White House’s curious treatment of potentially privileged documents with the Senate now – describing President Bush’s authorization of the torture program and its seemingly contradictory stance supporting publishing the Torture Report while thwarting its completion by withholding privileged documents. After all, the documents in question, like the reference to the presidential finding, may deprive the President of plausible deniability.

Furthermore, those documents may undermine one of the conclusions of the Torture Report. According to Senator Ron Wyden, the Senate Torture Report found that “the CIA repeatedly provided inaccurate information about its interrogation program to the White House.” Perhaps the documents reportedly withheld by the White House undermine this conclusion, and instead show that the CIA operated with the full consent and knowledge of at least some people within the White House.

Finally, the White House’s sensitivity about documents involved in the torture program may stem from the structure of the finding. As John Rizzo made clear, the finding authorizes not just torturing, but killing, senior al Qaeda figures. Bob Woodward even reported that that CIA would carry out that killing using Predator drones, a program CIA still conducts. And in fact, when the Second Circuit ultimately ruled to let the White House to keep the authorization phrase secret, it did so because the phrase also relates to “a highly classified, active intelligence activity” and “pertains to intelligence activities unrelated to the discontinued [torture] program.” Given what we know about the September 17, 2001 finding, that may well refer to President Obama’s still active drone program.

In any case, the White House’s seemingly contradictory statements about the Torture Report might best be understood by its past treatment of CIA documents. By releasing the DOJ memos and other materials, the White House provided what seemed to be unprecedented transparency about what the CIA had done. But all the while it was secretly hiding language describing what the White House has done. your social media marketing partner


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+54 # Anonymot 2014-03-14 17:18
We are living under the rule of non-elected people, because they have files that disgrace every single elected figure we think makes America's decisions. You and everyone interested in American politics has or should have read Lofgren:

Obama is just the puppet who turns what they do into public language - or secrets. Just hold on. The ride through WW III will be bumpy. I'm not certain if any of us can stop it.
+34 # 2014-03-14 19:04
With all these exposures the facts are emerging again because people in the know have since turned whistle-blower.

Simply they have acted anonymously and there have been hundreds if not thousands of such sources to press investigators and others, but unlike Snowden,Assange & the like they haven't the balls to add their names for report credibility. So they get away with it and the unconfirmed press inuendo unlike Greenwall again lack the balls to accredit same.

What's the difference ? USA Government right up to POTUS claim various protections and prosecute only those courageous enough to be named "Good Americans".

The whole system leaks like a proverbial sieve and many are called State employees to be trusted to this day.

The grand American exceptionalism, arrogance and gross hypocrisy thrives.
+64 # PABLO DIABLO 2014-03-14 17:21
"splinter the CIA into a thousand pieces and scatter it into the winds." --- John Kennedy
Guess why that didn't happen? How long are we going to tolerate their mistakes? Oh, and lies. The CIA is beyond "out of control". Evidently they are running/ruining our government. George Tenet should be held accountable for allowing 9/11 to happen. He saw Zacarias Maussaoui's computer with the plan in July 2001.
+2 # Joe Bob 2014-03-16 11:05
Just looking at John Brennan is enough to give you the Creeps.
+7 # PABLO DIABLO 2014-03-14 17:22
splinter the CIA into a thousand pieces and scatter it into the winds." --- John Kennedy
Guess why that didn't happen? How long are we going to tolerate their mistakes? Oh, and lies. The CIA is beyond "out of control". Evidently they are running/ruining our government.
+37 # Vern Radul 2014-03-14 18:36
Obama doesn't give a damn what you think of him.

On March 23, 2013 Noam Chomsky said: "Unless the powerful are capable of learning to respect the dignity of their victims ... impassable barriers will remain, and the world will be doomed to violence, cruelty and bitter suffering."

They are not. Throughout history they have not been interested in allowing themselves to.

To do so would mean people who want it all and believe they deserve to have it all putting restrictions on themselves. The "dignity of others" is not something they respect. They are not interested in limiting their own self-interest.

Morality is not something the powerful live by. Nor is law.

Morality and law are things the powerful push as a means of convincing most to limit themselves, to deter what they view as competition.

Anyone with half a brain can figure out for themselves the ramifications of that and what it's going to take to fix it...
+29 # ritawalpoleague 2014-03-14 19:25
"...ambivalance over the torture program..." Polite way of saying 'cave in by this current administration re. torture plus'.

One thing for certain - folks across the globe now hold this country of ours in total contempt, for violating international law re. torture. And, I confess, so do I. This 'torture in and when they please' m.o. in disgusting plus, as is Pres. Oh Bomb Ah's cave in re. closure of Guantanamo. Could and should be done under presidential order. Period. This is certainly near the top of the list of my new mantra:

+8 # indian weaver 2014-03-15 06:12
True, worldwide contempt for the USA is spreading slowly, along with no trust. With constant world class hypocrisy such as Kerry's statements about why Russia can not invade the Ukraine, the entire administration is self-humiliatin g. With the NSA listening to every country's discussions now, as revealed by Snowden, even our "allies" look askance at anything our administration says. Consider yourself and if you are being lied to and everyone knows it, including the speaker, would you trust that liar ever again. Same for Obama, Kerry, NSA, CIA, dumdum dubya etc. Germany, Europe, Canada, Mexico, Russia all know that our administration can not be trusted. Obama has no credibility. He's a joke. We have to laugh at him derisively, as does the entire world.
+12 # ericlipps 2014-03-15 06:28
We don't have to do any such thing, though I'm sure you want to.

As for the credibility of the U.S., that went out the window not long after 9/11, as a court-appointed occupant of the White House threw away the massive support the world (even most of the Islamic world) had offered in the wake of the attacks to prove he was more manly than Daddy--and, oh yeah, for oil, too.
+1 # Philothustra 2014-03-15 08:40
Good point, but considering that the NSA reads and utilizes its massive, recorded eavesdropping against all the major US political and military figures as well, it is absurd to suppose that Obama, the cabinet, the congress or anyone else in Washington is able to effectively "vote" to defund the CIA, NSA or any other of the MilitaryIndustr ial alphabet agencies.
What truly lacks "credibility" is the notion that the spooks have possessed this information all along and chosen to discreetly close their eyes and ears out of respect for our "leaders' privacy"!
+13 # RODNOX 2014-03-14 19:53
and to put a military person in charge of the CIA-----
+18 # wantrealdemocracy 2014-03-14 20:04
Shut down the CIA. We must demand that our 'representative s' vote as directed by their constituents. Direct democracy is our only hope of getting a nation with some justive and regard for the common good. The people of this nation must be in a position of control of our government.
0 # maryf 2014-03-17 22:48
Quoting wantrealdemocracy:
We must demand that our 'representatives' vote as directed by their constituents.

It would be interesting to know how we might actually accomplish this. The probable impossibility only contributes to the total disgust and despair many people have for the political process.
+12 # rose528 2014-03-14 20:50
where was the outrage when the then president gw bush let this happen from the begging
+19 # tigerlillie 2014-03-14 21:51
Why are these people so determined to use torture? They've known for a long time that it does not produce viable results. It is an expression of their own pathology, pure and simple.
+2 # indian weaver 2014-03-15 06:17
Torture is an intimidation campaign to let the world know that Amerika can do anything it pleases, to Anyone, Anytime, Anywhere. So, shut up and get in lock step with Amerika and bow to our demands and invasions for your oil or risk torture. Same as if anyone starting assassinating the Keystone XL pipeline employees. That is intimidation the same way: how you scare a company (or country, or president of Russia, etc.) - take out their employees, blow up the pipelines, if you can't kill the CEO. Then folks will stop working for Keystone out of fear for their lives. Obama's torture is only about world power, not truth. It works as intimidation, for awhile, until enough countries tell Obama to drop dead, you're no good, we aren't playing with you anymore. I can only hope. Rejection of Obama is taking too long, of course. Karmic retribution occurs too slowly. Sometimes individual / groups of humans / countries will finally lose patience when threatened badly and long enough.
+1 # dquandle 2014-03-16 21:20
Because they're sadists, and thy are in positions of power which
allow for its maximal abuse.
+16 # MidwesTom 2014-03-14 21:54
Where are the missing 28 pages froth 9/11 report?
+11 # MidwesTom 2014-03-14 22:05
Fewer and fewer people in this country follow what is going on in Washington. I would hazard guess that more Americans can name the panelist on America's Got Talent, then can name the leaders of the House and Senate. Nothing will change. There is no way to enlighten these uninformed people, and the parties have figured that out. They know that they are almost immune from attacks by the public, especially those in the 'safe' districts for both parties. Why worry about ethics or morals, or the future of the country.

I do not know how to change this, unless we want to somehow form a committee of the top 2 million on a national civics test, and empower them to change our direction; but that will never happen, because everybody with a heartbeat can vote; no matter how little they know or understand.
+5 # Vern Radul 2014-03-15 09:04
Tens of millions - no, hundreds of millions - of people are still falling for the two party shell game and believing that fake corporate controlled and run WWF match-like con jobs called "elections" are real.

The guy who came up with the quote attributed to P.T. Barnum must be rolling in his grave laughing.

There is a myth. A faerie tale. A fictional story of a functional two party system in which the the two brands legitimately oppose each other and present legitimate choice to voters.

In that framing Obama is "caving" to republicans.

In reality however, Obama does not cave.

When someone consistently and repeatedly goes along on everything with someone else whom he claims to be opposing it's not "caving".

It's the plan. The intentional plan.
+2 # dquandle 2014-03-16 21:21
+8 # Vern Radul 2014-03-15 09:05
People seem to have the idea that the Obama administration does not prosecute wall street and other large scale financial criminals because Obama is either incapable or weak.

That is a delusion.

Obama himself, and his appointees like Geithner, Holder, etc are not incompetent.

They are part of the gang pillaging the country.

This is disaster capitalism taken to the limit. Pillaging smaller weaker countries for their resources over the past six or seven decades has transferred trillions upon trillions of dollars to the United States.

Now, they are going after the biggest prize of all, and pillaging the United States.

They want it all. Perhaps for what they think is good reason?

British scientist James Lovelock and his warning that catastrophic global climate change is both imminent and unstoppable:
Within the next decade or two, Lovelock forecasts, Gaia will hike her thermostat by at least 10 degrees. Earth, he predicts, will be hotter than at any time since the Eocene Age 55 million years ago, when crocodiles swam in the Arctic Ocean.

"There's no realization of how quickly and irreversibly the planet is changing," Lovelock says. "Maybe 200 million people will migrate close to the Arctic and survive this. Even if we took extraordinary steps, it would take the world 1,000 years to recover."
+6 # Working Class 2014-03-15 10:35
What was done in our name was nothing short of war crimes - in a just world everyone involved would be put on trial just as we demanded at the end of WW II. Did I say "in a just world"? I guess that answers the question of why it hasn't happened.
+2 # maryf 2014-03-17 22:54
Except that the only ones put on trial after WWII were either German or Japanese. The victors are not put on trial no matter whose war crimes are worse.

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