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....)

The New Guidelines for Advisement of Rights to Terrorists?

[SEE BLOG ENTRY ABOVE FOR AN INTRODUCTION TO THIS FICTIONAL, SATIRICAL ACCOUNT ABOUT NEW RULES FOR INTERROGATING TERRORISTS!]

New U.S. Army/FBI/CIA Agent Field Manual:
Sec. 9-11 (Revised): INTERROGATION OF CAPTURED TERRORISTS ON THE BATTLEFIELD: THE NEW REQUIRED ADVISEMENT OF RIGHTS TO DEFENDANTS / TERRORISTS:

[First Note to Interrogating Agent: Identify yourself to your defendant/guest and remember: A big smile works better than water boarding any day! Next, proceed with the following advisement of rights.]:

1. Mr. [Defendant/Guest’s name]: First of all, please allow me to apologize to you for interrupting your pursuit of martyrdom here on the battlefield against our American soldiers.

2. And, Sir, if you don’t mind, please also allow me now to advise you of your Constitutional rights—And please understand you will be treated better and given greater rights than those afforded to any American citizen.

[Second Note to Interviewing Agent: Please also remember to ask the defendant/guest if he is comfortable…and please don’t forget to smile!]

3. Let me also advise you that our government apologizes for all our past administration’s sins and transgressions against you and your people in the former “war on terrorism”—now, if you don’t mind, we just want to sit and talk with you, and we apologize to you for not being more sensitive to your needs and your desire to kill us and to accomplish your most holy jihad against our country;

4. Please be further advised that you have the right to remain silent, and even if you possess valuable information about future terrorist attacks against us which may cost thousands of innocent American lives, we promise we won’t touch you, or do anything else about it;

5. You also have the right to have a free team of attorneys present, to represent you, and to sue me, or sue our government, if I touch you, or if you otherwise don’t get your way;

6. You further have the right not to have anything you say used against you, in a court of law, but instead, you have the right to use anything I say or do against me in my own prosecution by my own government, now, or in the future, if and when they change the rules again;

7. In short, please understand you have the right to a fair trial and to be treated like an American citizen, with full Constitutional rights, and not as a prisoner of war, nor as the dirty, low-life, God-forsaken, good-for-nothing, scumbag terrorist that some other uninformed people might think you are;

8. And please let me also advise you not to worry about Gitmo, that big, bad prison your fellow terrorists may have told you about, because it is being shut down. Instead, you have the right to request assignment to any cushy U.S. federal prison of your choice; that is, until your inevitable release and free trip back to any terrorist nation, training camp, or battlefield of your choice;

9. In the alternative, if you prefer, you have the right to be released inside the U.S. to any target location of your choice, and there you will be treated to free room and board, (at U.S. taxpayer’s expense), along with free universal health care, of course; and

10. Finally, Sir, please review the special kosher menu before you and make your meal selections while you consider all your rights and choices—and, if you don’t mind, we’d also like for you to take this short survey on how you feel we have treated you! Have a nice day!

[Final Note to Interviewing Agent: You may also elect to offer the defendant/guest an opportunity to save us all a lot of time and trouble by simply letting himself out the back door….and don’t forget to remind him to take his firearms and suicide belt with him…and please also remember to thank your guest and smile at him, really, really big!]