The SSCI Fracas and the CIA’s Duty to Make Criminal Referrals to DOJ

Ken Dilanian has a story on Acting CIA General Counsel Robert Eatinger (whom Caroline Krass, just confirmed, will succeed.)  Eatinger is at the center of the fracas between CIA and SCCI because he sent a criminal referral to DOJ related to the SSCI’s staff’s acquisition of the so-called “Panetta Review,” and because Senator Feinstein essentially accused him of having a conflict of interest since he was mentioned 1,600 times in the underlying SSCI study of the CIA’s detention and interrogation program.  I knew Eatinger a bit when I was at OLC a decade ago, and based on that experience I agree with John Rizzo that “[h]e doesn’t have a political bone in his body” and “[i]f he made this referral, it’s because he felt it was the right and necessary thing to do.” It might be useful to articulate the standard for the “right and necessary thing to do,” because I think that standard is at the bottom of this corner of the controversy.  The standard comes from Section 1.6(b) of E.O. 12,333, which imposes a duty on the CIA Director to:

Report to the Attorney General possible violations of Federal criminal laws by employees and of specified Federal criminal laws by any other person as provided in procedures agreed upon by the Attorney General and the head of the department, agency, or establishment concerned, in a manner consistent with the protection of intelligence sources and methods, as specified in those procedures;

I believe that the CIA Director delegates this duty to the CIA General Counsel. Note how low the bar is for the referral---possible violations of federal law.  Think about what that low standard means.  It means that CIA often has a duty to refer a matter to DOJ that it is reasonably confident does not violate federal law, simply because the matter possibly violates federal law.  As John Radsan noted in his study of the CIA General Counsel’s Office, the low standard results in CIA making “several referrals to the Justice Department in a typical month.”  It might seem that these frequent referrals are signs of lawlessness, but in fact they are a mechanism of accountability. The very soft trigger of “possible” as opposed to “likely” or “actual” violations promotes significant over-reporting and allows another Agency, DOJ, to decide the appropriate action in the first instance.”        The reporting duty in 12,333 is triggered not just when a CIA employee possibly violates criminal law, but also when “any other person possibly violates the federal laws (not sure what they are) specified in a DOJ-CIA agreement.  SSCI staff members are potentially included in this description.  I obviously do not know the facts, but I imagine that when Eatinger learned that the “Panetta Review” was in the hands of SSCI, and perhaps when he learned how it got in their hands, he concluded that it was “possible” that someone on SSCI committed a covered federal crime.  Again, the referral does not mean that Eatinger thought the staffer likely or plausibly committed a crime---only that the staffer possibly did so.  If Eatinger reached this conclusion, he had a legal duty to refer the matter to DOJ.  I do not know how much discretion traditionally inheres in the performance of that duty, and I cannot speak to Eatinger’s alleged conflict of interest, but I do know that the CIA General Counsel’s Office takes the reporting duty very seriously.  It refers matters all the time that it is confident will result in no action by DOJ, and the referral implies nothing whatsoever about the Agency’s view of the merits.  That is the way the system is supposed to work. Some have implied that Eatinger made the referral in retaliation for the SSCI report.  I seriously doubt that is true for many reasons.  One reason is that Eatinger has enormous experience in these matters and must have known that no matter how bad the act of the SSCI staffer, the referral would cause serious political problems with SSCI and redound to his personal detriment.  We must await more facts to know for sure, but I imagine that Eatinger made the referral, knowing that he would personally suffer these costs, because he thought the duty under Section 1.6 compelled it.  Indeed, if Eatinger believed the low bar was met, he would have violated the law by not reporting the matter. SSCI usually supports the CIA’s broad duty to report “possible” criminal violations to DOJ because the duty serves as a supplementary oversight tool for CIA.  One underappreciated consequence of this very low bar is the hell of DOJ scrutiny (and, usually, collateral Inspector General scrutiny) that entirely innocent CIA employees often have to go through.  I am not saying that every referral is groundless---many are not.  I am saying that many are groundless but are nonetheless compelled, and are awful to experience even when one is innocent because of the lawyers, the expense, the time, the stress, the distraction, the career hit, the fear of making a mistake before DOJ, etc.  Now the SSCI staff members have a small taste for what the low-bar criminal referrals feel like---witness Senator Feinstein’s rage.  But it will likely be a short taste, for I expect that DOJ will soon decline to pursue the matter.