[…] It may well be, for all the evidence the [Senate Select Committee on Intelligence] report apparently presents about the CIA providing inaccurate information about the program even to the White House, that the White House is shielding the institutions of the White House and the presidency.
Consider, for example, how the Bush White House unusually intervened to keep the torture program secret. According to a court document submitted by then CIA Director Leon Panetta in 2009, his predecessor at CIA, George Tenet, wasn’t the person who made the torture program a “Special Access Program” with sharply limited access, which is how it would normally work. Unnamed officials in the National Security Council did:
Officials at the National Security Council, (NSC) determined that in light of the extraordinary circumstances affecting the vital interests of the United States and the sensitivity of the activities contemplated in the CIA terrorist detention and interrogation program, it was essential to limit access to the information in the program. NSC officials established a special access program governing access to information relating to the CIA terrorist detention and interrogation program.
The Bush-era Executive Order governing classification and the current one both require presidential authorization for someone besides one of several agency heads — in the case of the torture program, Tenet — to make a special access program. Thus, as the Federation of American Scientists’ Steven Aftergood notes, “if the NSC established a special access program, as Panetta said, then it must have been authorized by the President himself. In effect, the President established the special access program.” The former director of the office that oversees classified information, Bill Leonard, agrees. “If it wasn’t one of those [Agency heads] who established the SAP in question, there would have to be an authorization from the President authorizing that official to establish a SAP.”
While the CIA appears to be the entity stalling on the torture report, according to Panetta, the White House ultimately created and owns the program.
It’s not just Bush’s NSC that has taken extraordinary measures to keep the torture program secret. While Barack Obama’s administration has already permitted the declassification of a great deal of information on the torture program, in fall 2009 Obama took the almost unprecedented step of having his National Security Advisor — at the time, retired Gen. Jim Jones — submit a declaration in the American Civil Liberties Union’s Freedom of Information lawsuit seeking release of documents pertaining to the torture program. It did so to hide the role of the White House in torture.
The judge in the suit, Alvin Hellerstein, believed that a short phrase describing “the source of CIA’s authority” to conduct torture had been incorrectly redacted by the administration. Jones’ declaration, which remains sealed and unrecorded on the docket, apparently argued that phrase couldn’t be released.
Judge Hellerstein lost that argument (the 2nd Circuit overruled him, relying in part on Jones’ declaration), so we don’t know precisely what the phrase in question said. But other documents in the case make it clear the phrase refers to a Sept. 17, 2001, presidential “directive” that, in part, set up the torture program. Former CIA lawyer John Rizzo, who was a key figure in setting up the torture program, has described the directive. “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” including “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.”
But as Rizzo makes clear, that directive not only authorized torture, it authorized a range of counterterrorism programs. The directive also authorized — and may still form part of the authorization for — the targeted killing program, most commonly associated with drones. Indeed, when the 2nd Circuit kept the phrase redacted, it cited other activities: “the withheld information pertains to intelligence activities unrelated to the discontinued program.”
President Obama’s administration may have already released a great deal of information on the torture program (which should mean much of the information in the report has already been declassified). But when it came to revealing the Bush White House’s role in unilaterally authorizing torture, Obama went to unusual lengths to keep the information secret. [++]