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View Diary: Panetta Tells CIA Torturers They Won't Face Charges w/ Poll (49 comments)

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  •  one wonders... (4+ / 0-)

    whether a bit of legal sophistry might assist (our) cause here.  

    It's my recollection that in many instances activities characterized as "interrogations" were carried out by independent contractors (e.g., Blackwater), and further that the CIA's leadership of the time might have, whether intentionally or otherwise, leaned on that distinction to avoid bearing the full brunt of public upset for those activities ("they're just contractors, we can't really control them").  

    There is are several important legal distinctions between independent contractors and employees - the one that jumps to mind most readily is that generally employers are vicariously liable for the misconduct of their employees ("respondeat superior"), while employers are not vicariously liable for the misconduct of independent contractors.

    All well and good.  But if the contractors are the ones who did the torturing, well, it wouldn't appear that the email protects them, right?  They're contractors, not employees, and if the distinction was important to the CIA before, the CIA shouldn't be able to ignore it now.

    You'll also note, by the way, that only employees who "took part in harsh interrogations" are covered by the email.  If you think some or all of those interrogations were ordered by people who didn't actually "take part" in them (at least not physically - there's room to argue there, I think), and if you want to punish those folks, I don't think the email stops you from doing so.

    Please respond if I've got the facts wrong, particularly if my recollection is incorrect as to the legal status of the persons who did the interrogating.  As a lawyer, I don't get my ears boxed nearly as often as I deserve...

    •  I don't envy Panetta his job (1+ / 0-)
      Recommended by:
      cotterperson managing that Bush-burrowed nest of vipers (many of the career folks were purged in the last 8 years).

      Remember, the CIA is where all the bad boys from NixonCo. were hidden due to all the hidden accounting. I would hardly be surprised to find most of the burrowing went through CIA.

      Make sure everyone's vote counts: Verified Voting

      by sacrelicious on Thu Mar 05, 2009 at 04:05:48 PM PST

      [ Parent ]

    •  That's all moot. (0+ / 0-)

      If the CIA didn't commit crimes, then they didn't commit crimes.  End of story.  But if they did, they must be held to account.  And even if they are only suspected of having done so, then any such suspected crime must be duly investigated.  

      Blackwater is a separate issue.  But I don't see any way to prosecute Blackwater without bringing the CIA into the picture, and I'm not convinced that preemptively pardoning the CIA will make it any easier.  

      •  Makes sense (0+ / 0-)

        my point merely was that insofar as Panetta's email looked like it was "bulletproofing" certain persons with respect to future prosecutions for torture, it's not clear that the email addresses those whom we would see prosecuted (regardless of whether it actually protects them or not).  

        If you're saying that a prosecution of Blackwater, for example, requires joining the CIA as a party, that actually doesn't sound right (if they committed torture, they committed torture, and as others have established the fact that they were ordered [or hired] to do so is not a defense).  

        On the other hand, if you're saying that there are CIA personnel whom you would like to see prosecuted specifically for their participation in torture, the fact that Panetta would like to see them bulletproofed (whether to encourage whistleblowers or otherwise) formally estops no competent party with standing from prosecuting them.  If it suggests that he would assert either a sovereign immunity defense or a state action defense on their behalf, then maybe it would (it would be the equivalent of fighting city hall), but we're not there yet and he hasn't committed to do so.

        (If you're knowledgeable about sovereign immunity and/or state action, please pipe up - I'd be curious to hear your thoughts.)

        •  Sounds right. (0+ / 0-)

          And no, I'm no expert (but I slept at a Holiday Inn last night???).  But there seem to have been numerous hints in the media a few years ago that waterboarding was "done" by Blackwater types, under the "direction" of CIA types, meaning (to go way out on that uncertain limb) that the CIA types would be extremely helpful in any actual attempt to prosecute the Blackwater types (or vice versa).  

          With Panetta's lack of enthusiasm for getting to the foggy bottom of this, sovereign immunity, state action or just plain "not gonna happen" means the law is no help.  Maybe some heroic whistleblower will be the key.  

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