An interesting story in today's Washington Post:
CIA counterterrorism officers have signed up in growing numbers for a government-reimbursed, private insurance plan that would pay their civil judgments and legal expenses if they are sued or charged with criminal wrongdoing, according to current and former intelligence officials and others with knowledge of the program.The Bush Administration is seeking legislation that would help protect CIA officers from liability. Another way to protect CIA officers from liability (at least in the future) would be to prohibit them from engaging in excessive or [potentially] illegal conduct.
The new enrollments reflect heightened anxiety at the CIA that officers may be vulnerable to accusations they were involved in abuse, torture, human rights violations and other misconduct, including wrongdoing related to the Sept. 11, 2001, attacks. They worry that they will not have Justice Department representation in court or congressional inquiries, the officials said.
From the end of the story:
Robert M. McNamara Jr., the CIA's general counsel from 1997 to November 2001, said he advised station chiefs to buy the insurance. "The problem is that we are the victims of shifting winds here," McNamara said he told the officers. "I can't sit here and tell you in all cases that I will be able to defend you."UPDATE: Several have commented that I was too flip and simplistic when I wrote: "Another way to protect CIA officers from liability (at least in the future) would be to prohibit them from engaging in excessive or illegal conduct." Guilty as charged (and I've edited the statement above). The point I was trying to make is that the creation of standard operating procedures and protocols can serve to reduce the potential for liability of CIA officers and others who have to make decisions about the use of coercive force as part of their jobs. This is not a question of passing a law, but generating internal rules and procedures to minimize the likelihood of certain types of excesses. Assuming a good fiath effort to operate within accepted legal norms, the clearer the rules about when one may engage in potentially tortuous behavior, such as the use of force, the less likely it is that such conduct will result in liability for the officer in question. As the Post reported:
However, McNamara's predecessor as CIA general counsel, Jeffrey H. Smith, said: "I'm deeply troubled that CIA officers have to buy insurance. . . . There should be clear rules about what the officers can and can't do. The fault here is with more senior people who authorized interrogation techniques that amount to torture" and should now be liable, instead of "the officers who carried it out."
Several former intelligence officials who said CIA officers do not need insurance because they can rely on the government to defend their lawful actions depicted the growing number of policies as a barometer of the uncertainty officers have of the legality of their work.Alas, some in the Bush Administration sought clever ways to redefine what was permissible conduct so as to excuse potentially tortuous (if not criminal) behavior, and this seems to have increased the potential liability exposure of CIA officials and others engaged in certain counter-terror activities. My poorly expressed point was that an alternative approach would not have left as many CIA officers exposed to liability.
A recently retired CIA officer who said he had not bought insurance contended that "if an individual does get sued in the course of their official duties, then you get the biggest law firm in the world to step in" -- the Justice Department. Justice regulations allow defending federal workers if the conduct is within the scope of an employee's job and doing so is in the government's "interest."