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:
“1. mass murder, 2. assassinations of civilians and 3. torture That strikes me as a very sad decision. Those actions all have terrible consequences in the real world.”
I resent the fact that you would state that I would or could approve of such reprehensible acts. What particular incidents are you referring to when you cite the actions above? e.g. mass murder; assassinations; torture.
Justin,
I did answer you. Please reread. Thanks!
A great deal of the damage being done to our nation is the failure to hold our leaders, past and present, accountable to the rule of law.
It seems to me that Americans have their hands full with trying to stop this president from doing any further damage to our country. Can we agree on that?
How long is this Bush, Iraq, torturing drum going to be beaten, anyway? I respect everyone’s opinion no matter how much we disagree, but when do we say enough? There comes a point where we keep going in circles.
Jill:
I asked this question in a previous post. You must have forgotten to reply.
“Since you are so outraged with the actions of our government, what are you doing to correct the very things your are condemning?” Talk to me.
Max-1:
“It’s as if YOU pitch their corps’ against the living exclaiming that the dead demand that we, the living, be damned.” Not really. As I read the posts, it sounds to me like there is more concern/compassion for those who are perceived to be tortured then for the Americans who sacrificed their lives. I just want to be like Fox News: Fair & Balanced.
Justin, What does that mean? In reality, the assassination of civilians by an out of control executive and his actual order givers has resulted in more terrorism, not less. You are less safe from a terrorist attack. The word for this is blow-back. That’s as real as it gets.
Another reality is this, once you have given up on the rule of law you have taken out the foundation of justice and problem solving in your own nation. I don’t know how you can’t see that has happened and what it means to your society. This society is in crisis. That’s a reality you are not accounting to.
You are saying that being real requires giving assent to: 1. mass murder, 2. assassinations of civilians and 3. torture That strikes me as a very sad decision. Those actions all have terrible consequences in the real world.
Justin L. Petaccio
“but say nary a word of compassion/concern for the 3000 who died on 9/11 and the 5000 who died in Iraq and Afghanistan.”
Justin,
The topic of the thread concerns the living hand how they protect the 313.9 million Americans. Had those troops not been sent into a folly of war crimes, they too would be part of the living. My question to you is:
Why must 313.9 million Americans give up their 1st, 4th, 5th and 14th Amendment Rights JUST because of 9/11 and the subsequent war crimes of aggression in Iraq? It’s as if YOU pitch their corps’ against the living exclaiming that the dead demand that we, the living, be damned.
My point is this, cockroaches are bugs, not people. Hutu vs. Tutsi. HISTORY!
Jews and gays and Gypsy’s weren’t human enough and thus, exterminated.
Which side are your repeating?
Jill:
Again you make a very good argument. I take great pride in being consistent, but methinks you need to come out of the ideal and come into the real.
Justin, First I will apologize for adding an e to your name. It was a typo, not an on purpose act, but it was my mistake.
You write that people like me give a terrorist too much latitude. There are several problems with that statement. First, who is a terrorist? The president feels that he, the CIA, the NSA, JSOC and OGA along with their contractor overlords are the sole arbiter of who counts as a terrorist. That is not the law of the United States. This is an illegal usurpation of authority. The world is littered with the bodies of men, women and children whom this govt. claims were terrorists. In fact, the were civilians.
There is nothing weak about bringing people to trial in a court of law. That is what our system requires from us. To uphold ones system of government is not weak, it is strong. It is not going easy on anyone. It is assuring justice.
The first thing that people like me try to get to the truth behind this government’s lies. We try to hold morally consistent positions, not changing our ethical demands due to membership in a sporting team or religion (political party). I work to uphold the rule of law.
I can understand why you believed the propaganda about Iraq but now that you know the truth, it is difficult for me to understand why you claim a war of aggression is justified. Wars of aggression are against the law of your own nation. When you say you support the rule of law but then justify wars of aggression, assassination and torture, that is a contradiction. To support the rule of law you would need to oppose all of these things.
So, I just don’t know what else to say except what I have already pointed out.
Good Morning, Nick. How’s the weather out there in San Diego? while i’m freezing my Philly ass off back here.
Great, civil interchange here, J&J.
Jill:
It’s been very good talking with you. You make a very good argument. I got somethings I need to get done today. Let’s do it again soon.
Jill:
Since you are so outraged with the actions of our government, what are you doing to correct the very things your are condemning?
Jill:
It’s JUSTIN. I’m not a girl. It does bother me, but we don’t live in a perfect world. Humans are imperfect beings. I’m not justifying the act of war. And yes, we were lied to. But in context I believe the actions taken were necessary. I’m outraged over the loss of human life.
Naturally, I could not reasonably agree with “torturing the child of a detainee.” You and others give the terrorist too much latitude. These are not nice people who are committed to our destruction. War is dirty. I don’t feel any less free because of these actions. Actually, I feel much safer. Again, it bears repeating, I support the rule of law.
Justine, Many people believed the war in Iraq was justified because many people believe the lies of their government. We actually do know that the govt. falsified evidence and propagandized its citizens to go to war against Iraq. This knowingly false war of aggression caused the death of our soldiers and over 100,000 Iraq citizens. The “leaders” of this nation lied to you. That should bother you, not make you want to justify what happened.
Justin, I asked that you read JT on this. He gives the law, the history, etc. One thing that is torture in our law is waterboarding. John Yoo claimed that crushing a man’s testicles and torturing the child of a detainee were permissible. Those are not legally permissible and that would also be an example of torture. If you are O.K. with those things which break the law and are extremely cruel, please explain why.
Our society has only the protection of the rule of law. Thugs who order torture, mass murder and assassination do not care about your welfare.
Jill,
There is no question you are angry, and you have every right to be angry. I remember the context in which the United States went to war in Iraq. We can postulate after the fact of what could’ve, should’ve, or would’ve been done at that time, but taken in context, I believe the war in Iraq was justified.
Jill,
I’m not quite to the point of “you aid in the destruction of your own society.” I’m not quite there, yet. But I will ask the same question I asked you yesterday, What is the definition of TORTURE?