October 1, 2009
By Edwin Meese III and Hans A. von Spakovsky
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
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
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
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
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.
Edwin Meese III
Ronald Reagan Distinguished Fellow Emeritus
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Hans A. von Spakovsky
Manager, Election Law Reform Initiative and Senior Legal Fellow
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