CIA director Leon Panetta has had a tough year. He's lost a series of high-profile battles with his White House bosses--over releasing Bush administration enhanced interrogation memos, the naming of a special prosecutor to -reinvestigate CIA operatives, and retaining the CIA's lead role in interrogating high-value terrorists. Having failed to stave off the Obama-Holder onslaught on his agency, Panetta was reduced last week to promising legal counsel for ensnared CIA employees.
But even that assurance is now open to debate.
In an August 24 statement Panetta declared his "primary interest--when it comes to a program that no longer exists--is to stand up for those officers who did what their country asked and who followed the legal guidance they were given. That is the president's position, too." Panetta followed up by saying the CIA would provide legal representation for those employees caught up in the special prosecutor's investigation.
But former intelligence and Justice Department officials have questioned the ability of Panetta to make good on his offer. Panetta's suggested arrangement hasn't been the way it's worked in the past. Former CIA director Michael V. Hayden told me, "What I did was make professional liability insurance available at no cost with the idea of casting a wider net. A lot of people did make use of it." A current U.S. intelligence official confirms that many employees have the insurance, but, he explains, Panetta's intention is to give "something beyond" that, including to those who did not obtain insurance or whose claims might not be covered.
That's where things get murky.
Despite multiple inquiries, the CIA would not specify what statute would allow Panetta to make this offer. As to past precedent, a U.S. intelligence official would only say, "There have been cases in the past where legal expenses have been indemnified for Agency employees." The official declined to say if this went beyond individuals' liability insurance or applied specifically to the agents implicated in the CIA inspector general's 2004 report on "Counterterrorism Detention and Interrogation Activities."
One former high-ranking intelligence official believes that Panetta's plan is to seek reimbursement from the Justice Department on a rolling basis for legal expenses incurred by agents, then look to liability carriers if the Justice Department is not forthcoming, and last rely on CIA funds for simple reimbursement. But a former Justice Department official notes that this "begs the question of the authority" to approve reimbursement from CIA funds for legal expenses.
Panetta's offer raises a host of questions, including who might qualify for reimbursement. The former high-ranking intelligence official asks, "Does it apply to everyone? We talk about the agents who are being investigated. But their bosses and their bosses' bosses will all be going for lawyers. They'll be asking themselves 'Did I report everything? Did I report fast enough?' "
Former Justice Department officials suggest that the Detainee Treatment Act (DTA) might cover agents' legal expenses. But that is problematic. One attorney explains that DTA protects agents if "the interrogations at issue were 'officially authorized and determined to be lawful at the time they were conducted.' " But, he notes, there is a "fair argument" here that the DTA does not afford legal protection to "interrogations that went beyond techniques approved by the Justice Department, which is what Holder claims to be focused upon." If that is so, then the DTA's provisions for legal counsel might be likewise limited. In addition, the statute might only apply to legal representation before foreign tribunals, not a U.S. special prosecutor's investigation.
An analysis by the Heritage Foundation suggests that Panetta may have been granted the authority in the 1949 Central Intelligence Act, which allows the director to make payments for "confidential, extraordinary, or emergency" purposes without regard to other expenditure regulations. But such an assertion of unbridled spending authority by the CIA would almost certainly invite challenge from Justice and Congress.
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.