October 1, 2009 | Commentary on Legal Issues
Score one for the case officers targeted by President Barack Obama and Attorney General Eric Holder's reinvestigation of interrogators that the Department of Justice previously decided shouldn't be prosecuted. CIA Director Leon Panetta says he will use agency funds to pay for their legal defense.
Panetta's decision is not only legal, it's correct from a moral, public policy and national security point of view. It's also the right thing to do for the individual agents, who otherwise may face financial ruin from escalating legal costs.
For agencies other than the CIA, a 1993 opinion by the U.S. comptroller general dictates that the payment of attorneys' fees related to a federal criminal investigation from appropriated funds requires the approval of the attorney general.
Fortunately, this opinion is not the governing legal authority. With the attorney general second-guessing the Justice Department's decision not to prosecute, the case officers were understandably concerned that he wouldn't approve the use of such funds.
The Justice Department also has its own funds that can be used to defend employees of federal agencies or to pay for private counsel if the employee is the target of civil, criminal and congressional proceedings. But this applies only if the employee's actions were within the scope of their employment, and, again, only if the attorney general approves the representation.
Paying the defense costs of federal employees who are sued is often appropriate. But it's surely warranted in this belated (and seemingly political) "reinvestigation." However, any request for payment of defense costs would undoubtedly meet strong lobbying resistance from organizations that have been defending terrorist detainees and that have seen prominent members rise to high levels inside the administration.
Furthermore, even if the attorney general approved paying for the legal defense costs, Justice Department policy states that payment for private counsel will cease if the department decides to indict on a federal criminal charge.
So if the Justice Department paid the costs of private attorneys for CIA employees during the investigative part of the case, such payment would cease if the department decided to criminally prosecute the employees.
Fortunately, Panetta has the unique authority to use appropriated CIA funds to pay for their defense. Under the Central Intelligence Agency Act of 1949, the director is given special authority to spend congressional appropriations "without regard to the provisions of law and regulations" relating to government funds.
In other words, the CIA has special needs and is not bound by all the restrictive laws applicable to other agencies. Accordingly, the CIA director himself has the legal authority to pay for his employees' legal defense costs when he alone deems it in the public interest. And there is no question it's in the public interest to do so.
Hopefully, experienced law firms will offer their services to these CIA employees to help defend individuals who were doing their duty -- a duty essential to the security of this nation and the safety of its citizens.
Many prominent firms have eagerly provided thousands of pro bono hours to defend terrorists who stand accused of trying (sometimes successfully) to kill and murder American civilians and military personnel. Will they show the same willingness to help patriotic Americans who have worked hard during the past eight years to protect America?
Edwin Meese III, the attorney general of the United States from 1985 to 1988, is Chairman of The Heritage Foundation's Center for Legal and Judicial Studies. Hans A. von Spakovsky is a visiting legal scholar at the Heritage Foundation. He is also a former commissioner on the Federal Election Commission and counsel to the assistant attorney general for civil rights at the Department of Justice.
First appeared in the San Francisco Examiner