He Doesn't Want to Get Involved - Part 3

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.

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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.”

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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.

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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 [...] that would have remained secret had Judge Hellerstein not insisted it be made public.

  Marcy Wheeler at The Intercept

Presidents will protect each other, won’t they? Nixon’s crimes went so far as to be prosecuted and subsequently pardoned by Gerald Ford, but ideally, they prefer to cloak themselves in “deniability” and cover each other’s crimes and misdeeds. 

And not only presidents protect each other, they have underlings who fall on their swords to protect them.  You remember what happened to  lying George Tenet.  (Although, that may well have been more a result of the fact that he wouldn't willingly fall on his sword to protect W, added to the fact that his lies were too transparent.  And hey, W did give him a Medal of Freedom.  Yay!)

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.”

Or perhaps more remarkable that the public was made aware of its existence.

Wheeler speculates in this article what Obama’s refusal to release this redacted phrase may be hiding:

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.

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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.

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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.

Frankly, I’m not sure how what the White House has or has not done is entirely relevant. The CIA operates at the behest of the White House. If the White House doesn’t know what the CIA is doing – deniability – is that good enough to be let off the hook? Oh, yeah. Ronald “I didn’t know” Regan. Apparently that’s good enough for Americans. But just let you get involved in some lawsuit where you are responsible for a child or a pet or a small company (corporate CEOs are just as unaccountable as political ones) and see how far you get around the legal dictum “knew or should have known.”