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....)