Sunday, January 25, 2009


An Obama answer from This Week -

OBAMA: We're still evaluating how we're going to approach the whole issue of
interrogations, detentions, and so forth. And obviously we're going to be
looking at past practices and I don't believe that anybody is above the law. On
the other hand I also have a belief that we need to look forward as opposed to
looking backwards. And part of my job is to make sure that for example at the
CIA, you've got extraordinarily talented people who are working very hard to
keep Americans safe. I don't want them to suddenly feel like they've got to
spend all their time looking over their shoulders and lawyering (ph).
STEPHANOPOULOS: So, no 9/11 commission with Independence subpoena power?
OBAMA: We have not made final decisions, but my instinct is for us to focus
on how do we make sure that moving forward we are doing the right thing. That
doesn't mean that if somebody has blatantly broken the law, that they are above
the law. But my orientation's going to be to move forward.

Now, considering the question put to Obama was - "Will you appoint a special prosecutor ideally Patrick Fitzgerald to independently investigate the greatest crimes of the Bush administration, including torture and warrantless wiretapping" - the fact that he says he does not want CIA agents "lawyering" suggests he will not investigate them. After all, how are you going to conduct an investigation without lawyers present?

Let's look at the case against investigating the CIA. The issue of legal fees (esp. as they relate to morale), for example:

“If I’m going to go to an officer and say, ‘I’ve got a truth commission, or I
want to post all your e-mails, or, well, we’ve got this guy from the bureau who
wants to talk to you,’ ” Mr. Hayden said, it would discourage such a C.I.A.
officer from taking risks on behalf of the new president’s policies. “We have no
right to ask this guy to bet his kid’s college education on who’s going to win
the off-year election,” Mr. Hayden said, alluding to legal fees that such a
C.I.A. officer might face.

But actually, according to Newsweek:

In anticipation of just such a scenario, however, the agency some years ago
began encouraging its employees to purchase special liability-insurance policies
from Wright & Co., a Virginia firm that specializes in coverage for
government investigators.

And by federal law, managers can be reimbursed for up to 50% of the cost of professional liability insurance (h/t Rich Stim). The 2006 Military Commissions Act also leaves the door open for the government to provide for legal costs. From wiki:

In 2005, a provision of the Detainee Treatment Act (section 1004(a)) had created a new defense as well as a provision to providing counsel for agents involved in
the detention and interrogation of individuals “believed to be engaged in or
associated with international terrorist activity”. The 2006 MCA amended
section 1004(a) of the Detainee Treatment Act to guarantee free counsel in
the event of civil or criminal prosecution and applied the above mentioned legal
defense to prosecutions for conduct that occurred during the period September
11, 2001 to December 30, 2005. Although the provision recognizes the possibility
of civil and or criminal proceedings, the Center for Constitutional Rights has
criticised this claiming that "The MCA retroactively immunizes some U.S.
officials who have engaged in illegal actions which have been authorized by the
Executive." [34]

It seems to me that, more or less, everything is already in place for the CIA to be investigated. How much more protection could you need? And furthermore, there is evidence that the CIA was willing to go out on the limb for the key psychologists that put together its torture program, James Mitchell and Bruce Jessen:

Attorneys familiar with the interrogation issue told Salon that in recent
months the CIA has moved to hire expensive private counsel to deal with mounting
legal concerns over interrogations. The CIA would not confirm to Salon whether
the agency would pay for private attorneys to represent the two psychologists,
Mitchell and Jessen, who were employed as contractors by the agency. But CIA
spokesman George Little said, "Quite apart from any specific instance, it should
not surprise anyone that the CIA would, in appropriate cases, assist with the
legal fees of those who have worked with the agency."

Working out the problem of legal fees does not seem terribly difficult. You could swap immunity in exchange for testimony for many in the CIA. I don't mind paying that price, provided the immunity is targeted towards those low in the chain of command.

But certain "senior" CIA officials pretend otherwise in order to threaten the interests of national security in the media. Everything is a "witch hunt."

Jan 5 2008:

Some CIA veterans fear the move is tantamount to unleashing an independent
counsel on Langley. "A lot of people are worried," says one former CIA official,
who asked not to be identified talking about sensitive matters. "Whenever you
have the bureau running around the building, it's going to turn up some heads.
This could turn into a witch hunt."

January 8 2009:
Still, some experts said any public fact-finding inquiry could be perceived
within the C.I.A. as a witch hunt.
“If Panetta starts trying to feed people to that commission, his tenure at C.I.A. will be over,” said Mark M. Lowenthal, a former senior C.I.A. official and an adjunct professor at Columbia University.
“If it happens, C.I.A. people are not going to start plotting against the president, but they are going to withdraw from taking risks, and then the C.I.A. becomes useless to the president,” Mr. Lowenthal said.

Again, I am not seeing how this is necessarily true. There are some in the CIA who should be taking risks - but there are others who should be much more conservative and interested in protecting the workforce. LIKE THE CIA'S LAWYERS - Jonathan Fredman for ex.:

They took the top lawyer for the CIA Counterterrorist Center to Guantánamo,
where he explained that the definition of illegal torture was "written vaguely."
"It is basically subject to perception," said the lawyer, Jonathan Fredman, according to meeting minutes that were made public Tuesday at a Senate hearing. "If the detainee dies, you're doing it wrong."


The meeting at Guantánamo showed how CIA lawyers believed they had found a
legal loophole permitting the agency to use "cruel, inhuman or degrading" methods overseas as long as they did not amount to torture.

How completely absurd is that? Why wasn't this man fired? Instead, he was sent (by somebody) to spread this legal advice to Guantanamo.

As of June 18, 2008, these revelations about Fredman's role were described as "new evidence." This evidence turned up as a result of the Senate's investigation of the Pentagon.

Imagine what an investigation into the CIA will turn up.

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