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.
Daniel Ellsberg:
“Tell Congress: Investigate NSA abuses and protect our constitutional rights”
http://www.credomobilize.com/petitions/tell-congress-investigate-nsa-abuses-and-protect-our-constitutional-rights
“Your nation is not a democracy. It is run by thugs. There is no terrorist threat that can do worse to your society and its people than what I just described.” -Jill
Bears repeating.
“Campaign created by Daniel Ellsberg”:
“Tell Congress: Investigate NSA abuses and protect our constitutional rights”
http://www.credomobilize.com/petitions/tell-congress-investigate-nsa-abuses-and-protect-our-constitutional-rights
“We need a new Church Committee that is fully empowered to investigate the abuses of the NSA and make public its findings, and that is charged with recommending new laws to ensure the U.S. government does not violate our constitutional rights.
Why is this important?
In 1975, Senator Frank Church, who led a committee charged with investigating and making public the abuses of American intelligence agencies, spoke of the National Security Agency in these terms:
“I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return.”
The dangerous prospect of which he warned was that America’s intelligence-gathering capability – which is today beyond any comparison with what existed in his pre-digital era – “at any time could be turned around on the American people and no American would have any privacy left.”
That has now happened. And so we need a new congressional committee like the one Senator Church led to investigate the revelations by Edward Snowden. The existing Intelligence Committees in House and Senate, gagged by secrecy and co-opted by the intelligence community they supposedly oversee, have failed to check dangerously excessive surveillance of Americans’ communications.
Pressure by an informed public on Congress to form a select committee to investigate these revelations might lead us to bring the NSA and the rest of the intelligence community under real supervision and restraint and restore the protections of the Bill of Rights.” -Daniel Ellsberg
Annie,
Obama promised to not prosecute anyone for torture before he became president. He has continued the torture program. He has continued to assassinate people on his own say so. (Please see Elaine’s link.)
The threat you fear should be a president who does these things, helped by a willing Congress and compliant judiciary. Your nation is not a democracy. It is run by thugs. There is no terrorist threat that can do worse to your society and its people than what I just described.
No terrorist threat justifies torture and assassination. We are lost as a people once we trade out the lives of others for the false belief that we will be saved by those who think nothing of killing or torture. Please, think what you are saying! Why do you believe people who torture and murder others have a good will towards you and your nation. Why?
As someone who deals with gov’t officials daily, Eatinger’s behavior is the RULE, not the exception. This doesn’t mean they are bad people, but there is a serious lack of respect for the rule of law in gov’t that leads to de-facto “conspiracies to win”. In many instances, there are systemic issues in administrations that exacerbate these issues (i.e. IRS employees advance by bringing in the $). Judges have only made it worse by deferring to and giving every benefit to gov’t officials. This can actually encourage the poor behavior that the judges purport to be so rare, because bad actors know they can get away with it if they have the cover of the gov’t.
Also, why were there no Republican members of the Senate Intelligence Committee involved in the investigation? According to Senator Saxby Chambliss none were.
Jill,
Do you feel that the President is wrong in continuing to fight a covert “war on terrorism”? in quotes because I’m no sure what to call it anymore.
No Jill, I’m not discounting the info in evidence, what gives me pause is that there seems to be missing info that could possibly explain why the decision was made to not proceed in publishing this info. Is it because there are continuing threats and continuing covert operations included in that info? If no adequate explanation is forthcoming, well let the chips fall where they may. It’s very disconcerting that this administration is protecting people who engaged in crimes. So what can be done? I’m a a loss here, still trying to wrap my head around this stuff.
O.K. trying to post this again! Annie, there is a way to know the truth. We have documents describing what happened. We have the statements of the principles who ordered, “legally justified”, engaged in and were the victims of torture. We can read and understand the law regarding torture. We can know what the legal duty of the president, Congress and the courts are in the case of torture.
That’s a great deal of evidence. We do not know everything that happened but we do know a lot of what happened. If you think it is important to disregard this evidence, would you tell me why?
Annie, there is a way to know what is true and what is false. We have documents explaining what happened to people who were tortured. We have actual statements by principles involved in ordering, “legally” justifying, engaging in and being the victim of torture. We do understand and can read what the law is regarding torture. We can understand and know what the president and Congress as well as the courts should be doing about torture. These are known knowns!
I’m not certain why you think it is impossible to know the truth in these matters. In many ways, we know exactly what happened in certain cases, although we do not know all of what happened. I’m not sure why this evidence should be discounted. If you are discounting all the evidence we do have, would you tell me why you have chosen to do so?
Reckless?? NO ONE has ever called me reckless. I’ve been called MANY things, but reckless ain’t one of them. I am the ANTITHESIS of reckless. Reckless people do not get hired by high powered attorneys and corporations.
Elaine M
Thanks for the link.
Been reading Marcy Wheeler for a long time now.
Do you suppose the White House has those torture video tapes hidden away, or were they really erased?
Why is the White House obstructing Justice?
The White House Has Been Covering Up the Presidency’s Role in Torture for Years
By Marcy Wheeler
13 Mar 2014, 4:18 PM
https://firstlook.org/theintercept/2014/03/13/president-obama-covering-presidencys-role-torture-4-years/
Annie,
Everyone’s truth is different…. But I will say that most folks truths are heart based…. Not based upon fear of something. Sure, being afraid of a bully or batterer is probably a persons truth… But it does not make it right…. When that happens it’s time to change dance partners…..
But Jill, the problem is that the “Truth” is so elusive. Where can this truth be found? We all are privy to the multitude of information out there and not privy obviously, to things that are essential to know. How can anyone have determined at this point what the Truth truly is? How can we as Americans get to the truth?
Fear mongering comes in many forms.
I don’t know who fear mongering as a poster name is but I do know that fear mongering is a a form of propaganda. Fear stops people from thinking, reflecting and seeing reality accurately.
Thinking, reflecting and seeing reality accurately are essential at this time.
Personal accusations are also effective at deflecting thought. I said this a long time ago, but will say it again. I don’t like the pope but if he has something truthful to say, I am honor bound to go with the truth whether I personally like the pope or not. What I have seen on this blog is Democrats worrying about everyone being a tea party member, a libertarian or whatever as a way of deflecting accurate criticism of their party. Democrats must stop worrying so much about the affiliations of others (or affiliations they attribute to others) and start worrying about seeing the truth. Even if a member of the evil tea party says something truthful, it can’t honorably be dismissed because it was said by that person. We should have more honor inside ourselves and towards others. We need honor and truth to have justice.
Fear Mongering, lol, all we need to do to be really scared is read this stuff about dark money.
“nick, We all know who fear mongering is”
~+~
So who is Fear Mongering swarthmoremom?
https://www.opensecrets.org/resources/10things/
10 things they won’t ell you about money in politics. To put some more meat on the bone of lobbying that was just tossed out recklessly.
Always appreciate movie tips, and we both love Wes Anderson. Thanks.