The Magazine

Panetta's Empty Promise

The CIA won't be able to pay its operatives' legal costs.

Sep 14, 2009, Vol. 14, No. 48 • By JENNIFER RUBIN
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A former Justice Department attorney dubs this a "head scratcher," wondering where Panetta gets his authority and whether the Justice Department won't find such payments unauthorized, and, indeed, illegal. Given the fact that "DOJ jealously guards its role as the gatekeeper of federal litigation," we may, he suggests, be heading for another CIA-DOJ clash. The CIA, however, thinks this is none of the Justice Department's business. A U.S. intelligence officer says, "It's my understanding that DOJ only has to approve of reimbursement for legal expenses when they are the ones paying for it."

In fact, there is considerable doubt whether, if the Justice Department refuses reimbursement, the CIA can step in to pay the agents' legal bills. It has been the Civil Division of the Justice Department's historical purview, not individual agencies', to decide such issues. In particular, the division's Torts Branch decides if a government employee was acting in his official capacity, and if affording representation is "in the best interests" of the U.S. government. And former Justice attorneys find it inconceivable that one division of the Justice Department would authorize payment of defense counsel fighting off another division's investigation.

On April 16, when Holder released the enhanced interrogation memos over the CIA's objections, the Justice Department issued a statement which read, in part: "To the extent permissible under federal law, the government will also indemnify any employee for any monetary judgment or penalty ultimately imposed against him for such conduct and will provide representation in congressional investigations."

But the language refers only to congressional investigations. A congressional staffer with knowledge of the issue, though, speculates that Panetta is attempting to prevent Holder from "weaseling out" of an apparent offer of legal protection. He thinks Panetta is making a political rather than legal calculation: "Is Eric Holder--who already went back on his word, actually the president's word, to look forward and not backward--going to leave case officers already twisting in the wind without representation?"

The Justice Department did not respond to repeated inquiries regarding the legal authority to reimburse CIA operatives' legal expenses.

It is not surprising, therefore, that Dick Cheney and former high-ranking Justice Department officials are flummoxed by Panetta's statements. Asked in a Fox News interview about the promise to pay the agents' lawyers Cheney responded, "Well, that will be a new proposition. Always before, when we have had these criminal investigations, the fact is that the employees themselves had to pay for it."

There is of course a solution to this dilemma. The toniest Washington D.C. law firms (including Holder's at the time) lined up to provide pro bono legal services to terrorists detained at Guantánamo. If these same firms would step forward to provide free legal help to CIA case officers the entire issue might be moot.

Meanwhile, CIA employees face a Justice Department inquest and are "lawyering up"--while being far from certain that they can rely on Panetta's promise that they will not go broke in the process.

Jennifer Rubin, a lawyer and regular contributor to Commentary magazine's Contentions blog, is Pajamas Media's Washington editor.