Friday, August 28, 2009

The Attorney General's Investigation of Past CIA Agent Terrorist Interrogations: An Abuse of Prosecutorial Discretion? What are the Ramifications?

Attorney General Eric Holder’s announcement this week that he has appointed Special Prosecutor John Durham to investigate past CIA terrorist interrogations raises a number of disturbing issues. Now, this is a blog about white collar crime; this is not a political blog, so maybe I should just leave the political questions for other bloggers. But whenever I see government abuse of prosecutorial discretion, it bothers me! In my opinion, Mr. Holder’s decision raises serious criminal law and Constitutional issues about the prospect of DOJ attorneys prosecuting CIA agents who were apparently following interrogation guidelines previously approved by other DOJ attorneys.

As a former federal prosecutor, (and currently, as a criminal defense attorney), I believe the Attorney General’s decision to open this new investigation, and any prosecutions that might follow, are also a colossal waste of government resources. Moreover, they are just plain wrong! No one should condone torture, but, in my opinion, unless the CIA agents engaged in a pattern of serious abuses beyond what has been publicized, no jury in this country will ever convict them. As I have indicated before in this blog, the government must prove criminal intent in any criminal case. But if these agents were following approved guidelines, they had no criminal intent. The CIA agents just did their jobs and, in the process, thankfully, saved innocent American lives.

And thankfully, at least CIA Director Leon Panetta is reportedly defending his agents. But this new investigation also raises other serious issues. In spite of Panetta’s support, how will the prospect of political witch hunts and prosecutions affect CIA agent morale? What will be its impact on future interrogations of captured terrorists? What has happened to the “war on terror?” And why have some government bureaucrats already forgotten about 9-11?

In the future, will agents ever again vigorously pursue information to save American lives? Where will Jack Bauer be when we really need him to stop the next 9-11? And folks, that’s not where the absurdities end! As you probably have also heard, it appears that agents may now also be required to advise captured terrorists of their Miranda rights! That is outrageous! As the late actor William Bendix often surmised in the old t.v. program,“The Life of Riley:” “What a revolting development this is!” In conclusion, please allow me to vent and exercise my First Amendment rights, (while we still have them), and by offering the following fictional, satirical account of how terrorists will now evidently be treated.

As longtime UGA football broadcaster, Larry Munson, used to say, “Get the picture!” Please just imagine in your mind’s eye the capture by our soldiers of a top terrorist on an Afghanistan desert battlefield. Intelligence reports indicate that the captive has information about a possible future terrorist attack. Imagine you are the agent who has been assigned to conduct the interrogation. And now imagine how you will feel when you are handed the following “new” U.S. Army/FBI/CIA Agent Field Manual on the interrogation of captured terrorists….

(See the next post....)


  1. “Get the picture!” Please just imagine in your mind’s eye the capture by our soldiers of a top terrorist on an Afghanistan desert battlefield.

    The reason all of that will have to be pictured in someone's mind's eye is bc it is fanatasy. Most of the black sites detainees were not battlefield captures and of the about 100 tortured, only 14 made it to GITMO. Go get the facts about German Khalid el-Masri's capture and time in the black sites instead of making up fantasies. The 20ish yo kid who was frozen to death in Afghanistan wasn't a battlefield capture, wasn't al-Qaeda, there was not ticking time bomb. There hasn't been a ticking time bomb in any of the interrogations. Hayden and Chedney have now admitted they didn't torture bc of a ticking time bomb, all torture got them was a lot of incorrect info on al-Qaeda (remember the *training camps* in Iraq?)commingled with some correct info. That was the sum total of torture, including torture killings. To get lots of bad info and some ok info and no ticking time bombs. And the torture wasn't in the field with a possible future terrorist attack looming. It was the implementation of a torture regime - where people were disappeared for months and months and years into torture experimentation that was tinkered with, had opinions written about, was tinkered with some more, etc. and became so wide ranging that it sucked in GITMO (where in 2002 the White House was informed a minimum of a third of the detainees were completely innocent) where less than 10% were battlefield captures, and the thousands and thousands in concentrated population camps in Bagram, Abu Ghraib etc. - again almost none of them battlefield captures.

    And while you are at it, wondering about what it would be like to be the agent assigned to conduct interrogation, again, ditch the fantasy and go read Matthew Alexander's book You know, the guy who actually GOT the information needed to get Zarqawi when the torturers failed. It explains a lot about the Dept of Justice that you were a former federal proseuctor.

  2. Mary, you are a troll. A coward who won't display any profile info. And you are misinformed. There was no torture. Only enhanced interrogation.

    Richard, I like this post so much I want to reprint some of it and link back to you on my blog. OK?

    Mary, P.S., :-P

  3. Folks, While I respect each person's First Amendment rights, I don't know who this "Mary" is, or why she chose to post such a vicious, venomous anti-American, defense-of-the-terrorists comment here. And I also don't understand why she chose to be so insulting to me, but I would only hope that, in the future, she will either get the facts and wise up, or get her own blog! In addition, as one of my heroes, Southern humorist Lewis Grizzard, would respond to such anti-American sentiment, if you don't like America, then "Delta is ready when you are!" And finally, I also hope that she will learn to spell better, too!

  4. Great Post!!! This reopening of an investigation against CIA agents is totally partisan left wing politics at play. What Holder is doing is wrong. He is punishing these dedicated CIA agents for following orders to protect the United States from another terrorist attack. I heard that the CIA aren't even allowed to question terrorists to gain intelligence. Now, the FBI and a White House task force is in charge of that. I tell you what, if I was an agent I would request a pardon from the President before questioning any suspected terrorists. CIA agents are leaving the agency and morale is at an all time low. This is unconscionable in my opinion, how Obama and Holder are tearing down the CIA. They are going back to a pre-9/11 mentality and I believe weakening the security of the United States.

  5. Yes, Opus No. 6, you may use my post! And thank you to each of you for your kind comments and for coming to the rescue!