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.
From the previous link:
“A much-cited 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission reads:
“Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.”
The tradition of anonymous speech is older than the United States. Founders Alexander Hamilton James Madison and John Jay wrote the Federalist Papers under the pseudonym “Publius ” and “the Federal Farmer” spoke up in rebuttal. The US Supreme Court has repeatedly recognized rights to speak anonymously derived from the First Amendment.”
EFF, on anonymity:
https://www.eff.org/issues/anonymity
Dave Maass on the topic of anonymity:
https://www.eff.org/deeplinks/2013/10/online-anonymity-not-only-trolls-and-political-dissidents
“Anonymity is important to anyone who doesn’t want every facet of their online life tied to a Google search of their name. It is important to anyone who is repulsed by the idea of an unrelenting data broker logging everything she has ever said, or shown interest in, in a permanent marketing profile. And more.
Bazelon describes anonymous comments as “generally a big mistake” for free societies. I disagree and point to Common Sense by Thomas Paine, originally published under the anonymous byline, “an Englishman.” (Perhaps that could be Gabfest’s next Audible recommendation.)
To suggest anonymity should be forbidden because of troll-noise is just as bad as suggesting a ban on protesting because the only demonstrators you have ever encountered are from the Westboro Baptist Church—the trolls of the picket world. People who say otherwise need to widen their experience and understanding of the online world. The online spaces we know and love would be doomed without anonymity, even if the security of that anonymity is far from absolute or impenetrable. The ability to explore other identities, to communicate incognito, to seek out communities and advice without revealing your identity is not only a net positive, but crucial to preserving a free and open Internet.”
I’m directing my comments now specifically to ANONYMOUSLY YOURS.
When I decided to become a community activist in 1989 I had a decision to make. I have a hard and fast rule: I would sign my name to any and all communications with public entities. If I said it, I wanted it to be know who said it. I did not hide behind the mask of anonymity. Because anyone who does not have the courage to stand behind their comments and identify themselves does not have any credibility with me.
.anonymously posted
Three words, Justin.
Rule of law.
(One day, perhaps you’ll understand.)
Because I disagree with you one day perhaps I’ll understand. Maybe you are the one who needs to understand
I watched your video. Very good video. But I keep coming back to my question: What is the definition of torture? I can’t make a valid determination unless and until I know what is defined as torture. So give me some place where I can go to get the definition of torture. I watch football because I know the rules of football. When someone violates the rule I know it. I need to know the definition of torture so I have a point of reference. Give me that information. Thanks.
If anyone takes the time to watch Tim Byrnes, start at the 7 minute mark.
Tim Byrnes @ ~7:28
http://www.wcny.org/television/ivory-tower/
(Tim Byrnes, Professor of Political Science, Coordinator of Benton Scholars on 03/15/14)
Three words, Justin.
Rule of law.
(One day, perhaps you’ll understand.)
Max-1:
“What does it matter what my personal definition of torture is?”
It matters because one person’s definition of torture is another person’s definition of interrogation. So, yes, it does matter to me. Who wrote the manual on the definition of torture? Torture is subjective. A terrorist will not hesitate to chop your head off and you are worried about giving him rights that he neither has nor deserves. As I stated previously, none of my rights have been abridged because we happened to rough up a few animals. Let me give you my definition of what I believe is an ANIMAL: someone who appears in human form but engages in constant pattern of heinous acts that only non-humans would commit. They live by the rule of the jungle, kill or be killed. They are not freedom fighters. They kill strictly for the purpose of killing.
Does “loyalty” matter in positions with great power done in great secrecy? Isn’t proper loyalty the top requirement for those with so much power?
All inteligence personnel swear “supreme” loyalty to the U.S. Constitution which includes our Bill of Rights. This supreme oath of office supersedes all other loyalties in their job duties and authorities – they agree to this contract as a condition of employment.
They may be otherwise great people with great intentions but do they honor their loyalty contract? It starts with the agency leadership and governs the orders they issue to subordinates.
Justin
When you say “Homeland”…
… Do you click the heals of the boots each time?
Justin
What you find to a threat and what I find to be a threat aren’t that different. Interesting that your point is hinged on a definition that doesn’t relate to your POV, instead insisting on a false equivalency to ground you points in.
What does it matter what my personal definition of torture is?
If torture is illegal and the USA engaged in torture, would it be correct that you would advocate not prosecuting the perps?
It just so happens the perps have been well rewarded by the very man you find a threat. Odd… We both agree. Yet, because I don’t fall on the graves of the dead of 9/11 to make my point, I’m off kilter in your mind.
Interesting… How do you define criminal acts?
Justin
So big of you to think I would be at home in Afghanistan.
I’ll try to remember to act insulted like Diane is.
I’m advocating FOR the preservation of our Rights.
… So you tell me to go join AQ.
It appears you just want to hand AQ a victory by advocating for the removal of basic and fundamental Rights America was founded on
Max 1:
“How long is this Bush, Iraq, torturing drum going to be beaten, anyway? -Justin
When the people who devised, authorized and covered it up are pacing in circles from behind bars in orange jumpers. -Max-1
Yep.”
Good Luck
Max 1:
The homeland has not been attacked since September 11, 2001. Game, set, match, Mr. Petaccio. Maybe if you study real hard you will be promoted to Max -2
Max-1
Did you ever consider relocating to Afghanistan? You sound like you might enjoy the environment over there.
Check the record, when was the last time we had a terrorist attack on the homeland? My point exactly. When George W. Bush was in the White House, I felt safe when I went to bed at night. I don’t feel safe with Barack Obama. And we could be on the cusp of another war in the Ukraine.
I’ll check back in a little while for your reply.
I doubt very seriously that any action is going to be taken against an ex-president. I think your energy would be better invested in more pressing current problems. e.g. Banghazi, IRS, NSA, an out-of-control president.