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.
Jill: I respect you and your argument. War is messy. People get killed. There are a lot of gray areas in war. I’m not justifying it. I strongly support the rule of law.
Jill, I agree and understand that both sides are complicit in these illegal activities. However I still think that Republicans are more likely to engage in the continuation of these policies of secrecy and intrusiveness. Senator Feinstein is a Democrat and the only Democrat who voted against such intrusions and practices. If I am to be forced to trust one side over the other, my instincts will push me to place trust in Democrats above Republicans. At this stage, it appears trust in either side should be withheld.
O.K. Is there terrorism? Yes, there is terrorism. Do terror attacks mean that we should suspend the rule of law? No, they do not. Suspension of the rule of law will break down any society far more effectively than any terrorist attack could ever do. There is no sense in having a Constitution if one will break faith with it because one is scared. It is the time one is most scared that one needs to keep faith with the rule of law.
Terrorism should be dealt with in a court of law. It does not require the suspension of the Constitution, in fact, that suspension has put all our citizens and people of other nations in great danger. There needs to be some things citizens won’t accept from their government. The breakdown of the rule of law is one of those things.
Jill: What is the definition of TORTURE?
Annie,
Let’s take a look at your argument. First, when Democrats controlled the House and Senate, they took the impeachment of a Republican president off the table. That has to tell you something. It’s already been shown that high ranking Democrats were fully aware of torture and approved it. So, why is there suddenly a concern that Republicans will bury things when clearly, Democrats had a chance to expose everything, but did not? There is much more going on here than evil Republicans verses the need to elect good, decent, Democrats. Both parties’ leadership are implicated. Torture would have stopped long ago had Democrats not been implicated in its approval.
Again, prosecution for torture is not optional under our law. It is mandatory. It does not matter what Richard Burr believes, it only matters what our law requires. That law is not being enforced by the Obama administration. That may be a painful fact to realize, but it is still a fact.
Emptywheel ( Marcy Wheeler) who is in Glen Greenwald’s new media group seems to think so, Annie She has been covering these issues since Bush and is also highly critical of Obama. McCain gets the Armed Services Committee. I think a republican takeover of the Senate is quite likely.
Dredd: I hope you never come face-to-face with “bull”
Justin L. Petaccio
annieofwi: “Are we in continual danger from terrorists?” YES, and America is going to be in continual danger from terrorist for decades to come.
=================
And the terrorist group’s name is Oil-Qaeda. The rest is bull.
Swarthmoremom,
Ah! I see you already posted this. It struck me too.
Swarthmoremom,
From your link.
“I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly,”
Senate Intelligence Chair, Richard Burr.
How likely is it that this information will be buried even deeper if Republicans take the Senate in 2014?
http://theweek.com/article/index/257939/its-time-for-obama-to-take-a-side-in-the-battle-between-the-cia-and-the-senate
annie, Obama is required by law to prosecute for the war crime of torture. It isn’t optional. JT wrote about this early on during Obama’s first term. It is a violation of the Constitution and his oath of office not to prosecute. It is an impeachable offense. Of course, Democrats took the impeachment of Bush “off the table” and they most certainly will not impeach one of their own. So we need to ask the question of why Democrats took impeachment off the table for their supposed enemy, GWB. What we find is that those who took impeachment off the table, were themselves fully aware of torture as it was happening. Instead of speaking out, they shut up and approved it themselves.
Part of your question assumes Obama was a different person before he became president. He was not. Remember that he had been a FIRE industry guy. His job there was to throw the poor under the bus on behalf of his rich patrons. He voted for retroactive immunity for the telecoms. He lobbied Congress along with Bush on behalf of the banking industry bailout. These things occurred before he became president. What really changed is not Obama, but the ability of some actual information about Obama’s actions to reach the public. Obama has an amazing PR machine. His propaganda is excellent but there is the reality of his actions which is knowable. I believe that reality is difficult for people who voted for him to face. Most people who voted for Obama, at least the first time, wanted the best for our nation. They thought they were doing the right thing. They were proud to have participated in electing a black man to the presidency, something which was long past due, along with electing a female some day. The problem was, any black man won’t do any more than any woman will do (say, Hillary or Elizabeth for example).
When people think they have done something really good and important it is difficult to face the fact that these well motivated actions did not turn out as planned. There is also a real tribalism in the Democratic party. This keeps people from facing uncomfortable truths and taking actions to remedy terrible crimes. Thus, people cling to the idea that Obama couldn’t possibly be doing anything wrong. Clearly, this is not the case.
Upon assuming the throne, conditions in Gitmo actually worsened. To this day, torture continues there. The dark prison in Bagram is another torture site. There are others. The US still engages in extraordinary rendition for the purpose of torture. I would recommend reading Scahill, Andy Worthington and Scott Horton for information about the continuation of torture. You can also read up on some things put together by Seton Hall’s law school. They have been keep track of detainees at Gitmo.
So Obama is not going to cooperate with a real investigation into torture. Cheney flat out admitted to ordering waterboarding. That’s certainly an easy place to start if one was serious about prosecution. To investigate torture would bring down the truly powerful and rather powerful minions in this society. That’s why there will be no cooperation forthcoming unless we the people are somehow able to force it into the open with the help of courageous whistleblowers.
Oh no, here we go with fear and loathing in DC.
The American people have an obligation and responsibility to demand that the report be made public. But, it begs the question: What is torture?
From emptywheel: “If Democrats lose the Senate, you can be sure that newly ascendant Senate Intelligence Chair Richard Burr would be all too happy to bury the Torture Report, just for starters. Earlier today, after all, he scolded Feinstein for airing this fight.
“I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly,”
Burr’s a guy who has joked about waterboarding in the past. Burying the Torture Report would be just the start of things, I fear.”
http://www.emptywheel.net/2014/03/11/where-the-bodies-are-buried-a-constitutional-crisis-feinstein-better-be-ready-to-win/
annieofwi:
“over the top” good way to put it. I wish I could tell you differently, but it is the price we are going to have to pay for our security. It’s the struggle between liberty v. security. It’s a fine line. Even a casual review will reveal that the United States’ policy in the Middle East has been an abject failure. Marry that with the fact that we are fighting an enemy who claims to speak for their God; there is no one more dangerous. This enemy does not think in terms of months and years. They think in terms of decades and centuries.
Justin, yes, I agree, but how much can we really be protected by over the top intrusions in our lives?
annieofwi: “Are we in continual danger from terrorists?” YES, and America is going to be in continual danger from terrorist for decades to come.
Why is the White House withholding the documents? Didnt the White House say they would work with the Senate Intelligence Committee? Didn’t the abuses in enhanced interrogation happen under the Bush administration? What good would suppressing the truth do for the current administration? Jill, I believe in one of the threads, mentioned that there were suspicions that the Obama administration continues the abuses in enhanced interrogation, or in other words, torture. What if anything did Obama learn after he took office that convinced him to keep on some of Bush’s appointees to these agencies? Are we in continual danger from terrorists? Or has Obama decided to use fear as a way of convincing Americans that intrusions upon their privacy is for their own good, as Bush did? So many secrets, so much to hide, not something that promotes confidence in the leadership, any leadership, of our country.
So what is the solution? Or will there ever be a solution and Americans will have to figure out ways to work around intrusive policies, such as other countries’ citizens have?