There’s no shortage of criticism directed at President Obama’s disinclination to prosecute CIA interrogators for torture, a position he’ll surely reiterate during his visit later this afternoon to CIA headquarters. Salon’s Glenn Greenwald objected to the Obama administration’s position, and he also rounded up similar objections from Keith Olbermann, Jonathan Turley, John Dean and Bruce Fein. (The United Nations special rapporteur for torture said failure to prosecute would violate U.S. treaty obligations.) But an additional wrinkle is that a provision in a 2005 law means that the American taxpayer would foot the bill for any legal fees incurred by a CIA interrogator in a torture-related civil action or criminal case.
Check out this part of the 2005 Detainee Treatment Act, which Sen. John McCain (R-Ariz.) championed in order to restrict U.S. military interrogations to compliance with the Geneva Conventions. (There was a loophole in that bill for the CIA, but I digress.)
(a) Protection of United States Government personnel
In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or *other agent of the United States Government *who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent’s engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.
The United States Government shall provide or employ counsel, and pay counsel fees, court costs, bail, and other expenses incident to the representation of an officer, employee, member of the Armed Forces, or other agent described in subsection (a) of this section, with respect to any civil action or criminal prosecution or investigation arising out of practices described in that subsection; whether before United States courts or agencies, foreign courts or agencies, or international courts or agencies,, [FN1] under the same conditions, and to the same extent, to which such services and payments are authorized under section 1037 of Title 10. [Emphasis mine.]
I’m not sure that this provision is so unusual, nor is this post an argument for or against prosecuting CIA interrogators. After all, there’s nothing inconsistent consistent in believing that CIA interrogators who may have violated the law are entitled to public defense, as they committed whatever alleged crimes they committed in an official capacity. But if it ends up, somehow, that the U.S. prosecutes CIA interrogators for torture, you and I are paying the interrogator’s legal bills. And it’s significant that Congress was thinking through the practical elements of hypothetical torture prosecutions.
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