We have previously discussed the irony of Senator Dianne Feinstein expressing outrage over the fact that her staff was subject to warrantless CIA surveillance. Feinstein’s outrage over the spying on her staff is only matched by her lack of outrage over the spying on the rest of America. However, she does have an good point to raise with regard to the role of one lawyer who seems to be dancing along the edge of both ethical and legal standards. He is the acting CIA general counsel Robert Eatinger who is believed to have played a large role in the programs and actions under investigation. Eatinger is well known to civil libertarians as someone involved in past abuses by the agency.
The CIA is accused of searching the computers used by the Senate Intelligence Committee to investigate harsh interrogation techniques and removed previously available documents from the system. Almost a 1000 documents were deleted or removed in part from the computers. This obviously violated the separation of powers and core Article I authority. It also raises possible violations, as Feinstein states, under Fourth Amendment, the Computer Fraud and Abuse Act and Executive Order 12333.
Eatinger is specifically accused of “a potential effort to intimidate” staffers. Eatinger’s role is particularly problematic because he has been the subject of congressional investigation over a variety of abuses and, as Feinstein notes, “[h]e is mentioned by name more than 1,600 times in our study.” She raises a good point of the obvious conflict of interest for Eatinger: “And now this individual is sending a crimes report to the Department of Justice on the actions of the same congressional staff who researched and drafted a report—which details how CIA officers, including the acting general counsel himself, provided inaccurate information to the Department of Justice about the program.” Of course, if Eatinger is ok with destroying evidence and violating human rights, the ethics rules may not offer much of a barrier for him.
Eatinger holds an infamous position for civil libertarians and many lawyers in these scandals. He was a lawyer in the C.I.A.’s Counterterrorism Center when the agency was running the detention and interrogation program that is the subject of alleged human rights and international law violations. In 2005, the CIA destroyed videotapes of brutal interrogations of detainees. Eatinger had been one of two lawyers to approve their destruction. As I expressed at the time, it was astonishing that no one was disciplined let alone prosecuted for the destruction of the evidence. One official admitted that the CIA wanted to destroy evidence that could be used in their own criminal prosecution. Instead of being prosecuted, people like Eatinger were promoted.
John Rizzo, former acting CIA general counsel, has defended Eatinger. In Rizzo’s 2013 memoir, “Company Man,” he recounts how Eatinger learned that Jose Rodriguez, head of the Counterterrorism Center, had ordered the destruction of videotapes of torture over the objections of senior CIA officials and the George W. Bush White House. Eatinger was upset but Rodriguez was citing Eatinger’s legal advice. The book says that Eatinger and another lawyer had told Rodriguez he was not barred from destroying evidence, but he never expressly authorized it. I fail to see the distinction since I view the destruction as raising serious questions of criminal conduct.
In 2009, Judge Royce C. Lamberth issued an opinion that accused Eatinger, Rizzo, Radsan and other CIA employees of fraud for allegedly withholding information on a CIA operative accused in a civil case. Now his name has come up again with regard to spying on Congress and an effort to intimidate staffers investigating, among other people, Eatinger himself.
Eatinger’s career speaks volumes about the lack of serious deterrent or accountability among intelligence officials. He is the very personification of an intelligence community that has become dangerously independent and unchecked. It was only a matter of time before that sense of impunity would result in the agency defying Congress itself.
The latest scandal shows the sense of absolute immunity enjoyed by intelligence officials — that sense is the result of years of acquiescence and passivity by Congress and the courts. If Eatinger is denounced as the manifestation of the arrogance in the intelligence community, Congress has been the enabler of such attitudes. Even in the face of perjury, Congress (and specifically Feinstein’s committee) has looked the other way and scrupled efforts to investigate.
Ironically, civil libertarians have not been particularly hopeful about the report from a committee long viewed as a rubber stamp for the intelligence agencies. Yet, the very fact that we are debating how this is going to turn out shows the degree to which the “fourth branch” now challenges our constitutional system, as discussed in an earlier column. The CIA is pushing back on this scandal and defending Eatinger’s role combating an investigation into his own conduct and those of his colleagues. This is after the agency has delayed the release of a report on these programs by controlling classified material and witnesses.
The ethics rules allow government lawyers to continue to work in areas of conflicts as long as they have a waiver from their agency — an often meaningless distinction in small legal shops like the CIA General Counsel’s office. Yet, it will be interesting to see if Eatinger received such a written waiver from the CIA director. In this case, it is highly troubling to have Eatinger involved in any aspect of the investigation when he could face personal repercussions from the conclusions of the Committee. If a waiver was given, it was a poor decision by the CIA director that itself raises questions over his judgment and commitment to the resolution of these serious allegations.
I have litigated the issue of such conflicts of interest by agency lawyers, including the ongoing controversy in the World Bank case. In this case, Eatinger is involved in seeking a criminal investigation of investigators who have been questioning his role in not just an alleged torture program but the destruction of evidence of torture. To ask for a waiver in such a case would show a lack of professional judgment. To sign such a waiver would show an equal lack of judgment.
CIA Director John Brennan scoffed at the notion that the agency would commit such actions as “beyond the scope” of reason. He insists that they would just not do such a thing. Someone needs to remind him that the CIA is being investigated for torture, evidence destruction, and other major crimes. The “trust us we are the CIA” approach may not work particularly well in this case, even if it has apparently succeeded for years before this very Committee.
ap,
“This place is a zoo,” said the thin-skinned, rabid FOXes.
http://youtu.be/mtlUuQw986Q
CIA Spies and Tortured Lies
by Amy Goodman
http://www.truthdig.com/report/item/cia_spies_and_tortured_lies_20140312
Excerpt:
Ray McGovern is a former top-level CIA analyst who publicly criticized the intelligence used to justify the invasion of Iraq. He told me: “This goes back to the key question of supervising the intelligence community. … People always say, ‘After 9/11, everything changed.’ Well, it did change. The president, on the evening of 9/11, said, ‘I don’t care what the international lawyers say. We’re going to kick some ass.’ … Well, they took some prisoners in Afghanistan, and the first person tortured was John Walker Lindh, an American citizen.”
The torture was widespread, vicious and conducted in secret “black sites” around the globe. This is what is being lost in the Beltway power struggle between Sen. Feinstein and the CIA. Lives have been ruined; some in U.S. detention died violent deaths at the hands of their captors. In the grim American gulag at Guantanamo Bay, hunger-striking prisoners charged with no crime, some of whom have been cleared for release for more than a decade, are subjected to vicious force-feeding and torture techniques that date back to the Spanish Inquisition.
Let’s hope Feinstein’s indignation is not quickly salved, and that the Intelligence Committee’s oversight of the sprawling U.S. intelligence agencies is invigorated, with real teeth. NSA whistle-blower Edward Snowden weighed in from political asylum in Russia, saying, “We’re seeing another ‘Merkel Effect,’ where an elected official does not care at all that the rights of millions of ordinary citizens are violated by our spies, but suddenly it’s a scandal when a politician finds out the same thing happens to them.”
Justin,
I think you should email your complaint directly to Jonathan. He doesn’t have time to read all the comments on all of the posts on this blog–nor does he have time to “check the record.” I’d suggest you compile all the evidence you have of my reprehensible behavior and send it to him.
Have a nice day!
Nick,
No one is trying to run anyone away from here….. Except sans you to Elaine….. You’re gonna start something you’re not gonna like the end of….. Promise….
Serenity now, serenity now, serenity now. This has devolved into “I know you are but what am I.” Can, “I’m rubber, you’re glue,” be far behind. Running a guy outta here just because he watches Fox News is close minded, echo chamber horseshit. Our host appears on Fox and I know that frosts some of your asses. Get over it, and grow the f@ck up.
Thanks Darren. So it’s immunity they will probably get. Too bad.
Justin or Jason as you were referred to by Nick… The only game that’s being played is your disruption of this site…. Elaine is well qualified to take care of herself…. Annie has been attacked by another poster here… One of Gene attackers seems to think once a mea culpa is hailed then everyone should forget….
As you started off or nick did…. This is not gurellia warfare… This is not the trenches…. Most of the folks try and have reasonable discussions…. You’ve tried to bait me…. I very seldom go for the shinny objects in the water… Enjoy your stay here as long as you want…. But we have long memories….
All Professor Turley needs to do is check the record. That will tell the true story.
Annieof wi wrote:
“So when it’s declassified and published, what happens next? Are Bush/Cheney subject to criminal charges? Will we be seeing them in the Hague anytime soon?”
~+~
Unfortunately the US is not a signatory nation to the treaty accepting jurisdiction of the International Criminal Court. Though it acts to assist in the arrest of individuals who comment war crimes. The premise that various administrations have used is that it would subject American generals and soldiers to arbitrary charges by third world regimes bent on simply political reasons. Well that might be one reason but I don’t believe it is enough since the ICC can dismiss a charge for lack of evidence before trial. To me it is that the administrations and leadership fears it will be sitting in a cell in The Hague and they want immunity.
Justin,
Please describe HOW you were attacked. I don’t recall anyone attacking you personally. Disagreement with your opinion is not attack. Grow a thicker skin and drop some of the animosity and your voice here won’t be so discordant. I’m pretty sure Professor Turley doesn’t wan is blog turned into an echo chamber , NOR a battlefield, with combatants engaged in trench warfare. Just my opinion.
Elaine can defend herself, but you do her an injustice.
Professor Turley,
I was living a nice peaceful, quiet life watching the civil, constructive, intelligent discussion on Fox News, when you came over to Fox News. It was good seeing you again after almost 15 years. I enjoyed watching you on CNN and learned much from you. You inspired me to become the political junkie I am today. I got the web address of your blog after your interview with Megan Kelly.
I’ve been on your blog now a little over a month and this thing is a zoo. I’ve never seen or heard anything like it before. Is this the way progressives/Democrats/libertarians conduct their discussions? On Sunday, March 9, 2014 I was viciously attacked by one of your weekly contributors, Elaine MagIiaro, just for having the temerity to compliment Fox News and Sean Hannity. Ms. Magliaro, along with another blogger, anniofwi, came after me like a pack of wolves. And Ms. Magliaro was a teacher and is one of your weekend contributors. What is that all about? Do you approve of this type of behavior? I hope not. I always viewed you as a person of high moral distinction. I can’t believe you would approve of this kind of behavior. I would have never gotten involved in this except for you.
Respectfully,
Justin L. Petaccio
Correction: Who were disagreeing with you. I really don’t like being called a “hate monger and reprehensible”. Perhaps you could drop some of the animosity and start over?
Justin,
I suggest you file a complaint about my “reprehensible” behavior with the host of this blog. Maybe he’ll make me go sit in a corner.
annie,
Don’t forget “deja view.” That’s when you see “hate-mongers” everywhere you look.
😉
Justin, if you think that commenters are “hate mongers” and “reprehensible” for expressing opposing views you have very thin skin. Last weekend you called people hate mongers who were with you about Fox news, what is it this weekend, are you angry that Professor Turley had to remind everyone about the civility rule and anonominity? You join Nick Spinelli in waging some sort of “trench warfare” on commenters here? Do you think that engenders?
Well, I got more important things to do like watch some tennis.
Is Professor Turley aware of your reprehensible behavior? That’s what “that.”