Robert Eatinger, Lawyer Who Approved Torture Tape Destruction, Tries to Intimidate Senate Investigators

Dianne Feinstein just gave a barn burner of a speech explaining the CIA/SSCI fight over the Torture Report. There are a lot of details I’ll return to.

But one of the most important issues, in my mind, is the detail that the Acting General Counsel of the CIA, Robert Eatinger, referred the Senate Intelligence Committee investigators to DOJ for investigation. (h/t to DocexBlog for identifying Eatinger) Feinstein correctly interpreted this as an attempt to intimidate her staffers as they complete the investigation.

And, as Feinstein made clear, Eatinger is a key focus of the report. Feinstein revealed that Eatinger (whom she did not name) was named, by name, (if I heard Feinstein’s claim correctly) 1,600 times in the Torture Report.

At least some of those mentions surely describe CIA’s decision to destroy the torture tapes, an act Eatinger sanctioned.

Former CIA clandestine branch chief Jose A. Rodriguez Jr., who ordered the destruction of the tapes, has said through his attorney that he based his decision on legal advice from agency lawyers. The lawyers, Steven Hermes and Robert Eatinger, did not endorse the tapes’ destruction but rather concluded there was “no legal impediment” to disposing of them, according to sources briefed on their advice.

Hermes and Eatinger, who only recently were interviewed by Durham, continue to work at the agency and have retained counsel, the sources said.

Feinstein described Eatinger’s key role as the Counterterrorism Center’s chief lawyer (presumably after Jonathan Fredman left). Some things CTC lawyers did were:

  • Approved the use of sleep deprivation before DOJ considered the question
  • Altered the record of the original briefing to Nancy Pelosi and Porter Goss
  • Used a John Yoo freelanced memo as the basis of advice to CIA on torture
  • Collaborated with John Yoo to write a “Legal Principles” document that authorized otherwise unauthorized torture techniques

Lawyers probably associated with CTC also lied about the treatment of Hassan Ghul in 2004.

Eatinger also contributed to a CIA cover-up attempt in a key State Secrets case.

There’s a lot that’s amazing about this story. But I find it particularly telling that a lawyer trying to protect his own ass — trying to hide details of the 1,600 mentions of his name in the Torture Report — has targeted Senate Intelligence Committee staffers.

Update: Given that Eatinger is apparently the person who referred the Senate staffers, it is significant that Feinstein started her speech by raising the torture tape destruction.

The origin of this study: The CIA’s detention and interrogation program began operations in 2002, though it was not until September 2006, that Members of the Intelligence Committee, other than the Chairman and Vice Chairman, were briefed. In fact, we were briefed by then-CIA Director Hayden only hours before President Bush disclosed the program to the public.

A little more than a year later, on December 6, 2007, a New York Times article revealed the troubling fact that the CIA had destroyed videotapes of some of the CIA’s first interrogations using so-called “enhanced techniques.” We learned that this destruction was over the objections of President Bush’s White House Counsel and the Director of National Intelligence.

After we read about the tapes’ destruction in the newspapers, Director Hayden briefed the Senate Intelligence Committee. He assured us that this was not destruction of evidence, as detailed records of the interrogations existed on paper in the form of CIA operational cables describing the detention conditions and the day-to-day CIA interrogations.

The CIA director stated that these cables were “a more than adequate representation” of what would have been on the destroyed tapes. Director Hayden offered at that time, during Senator Jay Rockefeller’s chairmanship of the committee, to allow Members or staff to review these sensitive CIA operational cables given that the videotapes had been destroyed.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

45 replies
  1. orionATL says:

    acting general counsel , BUT wasn’t considered for the job (booted from consideration due to torture tapes role)?

    am i wrong in recalling that a federal judge had ordered the tapes not be destroyed? if so, what about eatinger’s “no impediment…” judgement?

    who’s calling the shots in this dicey challenge to its oversight committee, eatinger or john brennan?

    • Alba Etie says:

      Is the Durham investigation over or not ? I have not had the opportunity to keep up with this site and the torture accountability investigation . But last time I visited here I thought the Durham mandate for inquiry was over – But then in this piece it is stated that Eatinger was recently interviewed by Durham ?
      Its the middle of SXSW here in Austin – and I have ten passenger one vehicle charter service so am very busy with work – and just trying to keep up

  2. steve says:

    Wonder how much of this is him being afraid for his own neck only, and how much is because he is afraid that, like a grove of aspens, they’ll all turn together?

  3. bevin says:

    Am I being unduly optimistic or is Ms Feinstein hinting that “hell hath no fury like a woman scorned” and scorned and scorned and

    • lefty665 says:

      Makes one wonder whose backbone she’s using, and who engineered the transplant. But then she didn’t make the referral to the DOJ on CIA wrongdoing, it was CIA’s IG.

      While it was a smoker of a speech, so far she’s all mouth. However, it’s a start. We’ll know she’s for real if she declassifies the Senate report by the end of March as threatened.

        • P J Evans says:

          DiFi’s more mouth than substance. She’s shocked, shocked! to discover the CIA actually spies on US citizens.

      • GKJames says:

        Agreed. We know that Washington is first and foremost theater art. Feinstein’s salvo will be nothing more than faux umbrage unless/until she presses for public disclosure of the report. Besides, taking shots at Eatinger–even if genuine–says zero about her ongoing deference to Brennan and the rest of the apparatus. This may in fact just be a fit of pique that’s personal because it involved her staff; in an extreme case, she might demand Eatinger’s head in exchange for NOT disclosing the report. Ultimately, though, given that Obama and Holder already have given everybody a pass, it’s hard to imagine that Feinstein’s doing anything but posturing.

        Particularly annoying, by the way, is that “Hermes and Eatinger … [not only] have retained counsel,” but have done so at your and my expense.

        • lefty665 says:

          Expect you’re right, at best a deal that ensures the report never surfaces.

          Money is fungible, maybe it’s the Chinese buying our debt that paid for the mouthpieces.

      • Stevesaw says:

        What I’m also wondering, as is lefty665, is whether Feinstein will take action, and not make too many more speeches, to try and actually remedy this CIA assault on the Senate Intelligence Oversight Committee, separation of powers, and the Constitution.

        The committee (which has been largely toothless and supportive of the NSA/CIA and the 14 other intelligence agencies “matrix,” over drone killings, mass surveillance, and I’m sure a host of other egregious acts by the military and intelligence communities yet to be disclosed), up until this moment, with exception of a few Democratic Senators like Wyden and Udall, has facilitated the acts of the intelligence community most often, and not exercised its responsibility to provide true oversight, guidance, and the necessary checks and balances as required by law and principle.

        What I’d like to see come out of this, if Feinstein has any real guts to take action, and reduce the verbiage, is to go to the Senate floor with a proposal that, like was needed in 1975 in the wake of the Watergate scandal, FBI cointelpro, NSA domestic surveillance, and CIA spying and prior mind control programs like MK Ultra, attempt to get a new “Church Committee” rolling, to investigate the crimes of the intelligence community that have unfolded repeatedly over the past nearly 20+ years, both before and especially after 9/11, when US fears were exploited to create what is now becoming a national security surveillance state, and push back and restrict the domestic mass surveillance Snowden revealed and the other excesses, crimes, and violations of the Constitution and Bill of Rights to help restore America to the rule of real, public law, and not of men, in secret, who have been largely unaccountable for malignant growth of the intelligence community and its own “bad actors” and bad actions

        Congress, the judiciary, and the executive branch must all come together, somehow, to rein in this insanity, and renew and resurrect the democratic principles this country was founded upon, or eventually we will all not just be living in an even more nightmarish version of Orwell’s “1984,” but we will be further subjected to being made into “clockwork oranges,” as per Burgess.

        Enough! These kind of behaviors and manipulative actions must be stopped before it is too late to do so, if it isn’t already.

    • lefty665 says:

      OTOH, it may be that she, or someone in Congress (aka Reid), is truly institutionally offended. That would make this as much a turf battle as torture or staff trashing. Brennan was so publicly offensive last week it was put up or shut up in response.

      There are signs Congressional Dems have had a bellyful of O and his equivocating, capitulating, passive aggressive ways.

  4. ArizonaBumblebee says:

    One of our most underrated presidents of the modern era was Harry Truman. He once said that the buck stops here (i.e. in the Oval Office). Mr. Obama, you need to take time away from your vacation and assert your authority over the CIA by firing Mr. Eatinger and Mr. Brennan. Obstructing congressional oversight is a very serious matter. Your inaction only fuels the suspicion that you are behind what the CIA is doing in this matter.

  5. Snoopdido says:

    One should also consider that Senator Feinstein’s speech in both tenor and substance as one made with deliberate political calculations. One that was made with the support of the full Democratic Senate Conference. Some of those were:

    1. Trying to get (more) SSCI Republican Committee Member support for releasing its Torture Report.

    2. Trying to get (more) Republican Senator support for the full Senate vote on releasing its Torture Report.

    3. Lastly, attempting to release the Torture Report this year as a Democratic weapon to use against Republicans in the upcoming 2014 Congressional elections.

  6. orionATL says:

    so THIS is the behavior of cia’s plumbers gang that pissed of ssci.

    and john the butcher wants to defend it?

    smart guy, that john.

    from wapo transcript of senator feinstein’s speech this am:

    “… documents and the committee staff was gaining familiarity with the information it had already received. In May of 2010, the committee staff noticed that the documents had been provided for the committee — that had been provided for the committee’s review were no longer accessible.

    Staff approached the CIA personnel at the off-site location, who initially denied that documents had been removed. CIA personnel then blamed information technology personnel, who were almost all contractors, for removing the documents themselves without direction or authority.

    And then the CIA stated that the removal of the documents was ordered by the White House. When the White — when the committee approached the White House, the White House denied giving the CIA any such order.

    After a series of meetings, I learned that on two occasions CIA personnel electronically removed committee access to CIA documents after providing them to the committee. This included roughly 870 documents or page of documents that were removed in February 2010; and secondly, roughly another 50 that were removed in mid-May 2010. This was done without the knowledge or approval of committee members or staff, and in violation of our written agreements. Further, this type of behavior would not have been possible had the CIA allowed the committee to conduct the review of documents here in the Senate. In short, this was the exact sort of CIA interference in our investigation that we sought to avoid at the outset…”


    had the cia been giving the committee documents, in nominal response to ssci’s request, then taking them back once these “hot docs” had been found by committee staff amidst the gigantic paper haystack that the cia had dumped on the committee?

  7. liberalrob says:

    The destruction of the tapes should be a smoking gun that there was stuff on them that clearly would have been seen as gruesome torture to a reasonable viewer. Offering up hardcopy transcripts of the sessions is so laughably lame, just ridiculous on its face. They sure learned the lesson of Watergate, though, didn’t they? Burn all the tapes and deny everything.

    • liberalrob says:

      If I were a rich Hollywood producer, I’d try to get my hands on those transcripts and use them as the basis for a dramatization. Of course the CIA would complain that “that’s not how it happened,” but let them try to prove a negative after destroying the evidence. If we have space for 9/11 Truthers, then why not Gitmo Truthers?

  8. lefty665 says:

    Dan Froomkin at TI

    Froomkin: “Feinstein’s fighting words were in stark contrast to her role as a champion of NSA surveillance. In most cases, Feinstein has served as an example of how badly oversight over the intelligence community has failed, serving as an accessory to the very kind of excesses her committee was established, in the 1970s, to prevent.”

    However, here’s DiFi’s settlement terms: “I have asked for an apology and a recognition that this CIA search of computers used by its oversight committee was inappropriate.”

    Turf, turf, turf! Leahy may actually be ready to stand for something.
    “This is not just about getting to the truth of the CIA’s shameful use of torture. This is also about the core founding principle of the separation of powers, and the future of this institution and its oversight role….The members of the Senate must stand up in defense of this institution, the Constitution, and the values upon which this nation was founded.”

    • Peterr says:

      I particularly liked the way Froomkin ended his piece (at the end of the update made at 2:34pm ET, that is), coming on the heels of Wyden and Udall’s “You go, girl!” statements:

      White House spokesman Jay Carney, meanwhile, said “The president has great confidence in John Brennan and confidence in our intelligence community and in our professionals at the CIA.”

      It sure sounds like he’s saying “Heckuva job, Johnny!”

      • lefty665 says:

        “It sure sounds like he’s saying “Heckuva job, Johnny!” In y(our) dreams. This is executive branch closing ranks against Lege.

        O controls the investigation too. If you were FBI/DOJ investigating Brennan/CIA what would you do with that guidance from the boss?

        Congress will need its own investigation for this to get legs.

  9. lefty665 says:

    Today’s taunt: “It’s not as though we’re holding it back,” Brennan said of the still classified interrogation report. “It’s up to them [the committee] to release it.”

  10. blueba says:

    OK, so this is a constitutional fight between executive and legislative, no? In that event, the supreme court would be expected to have a seance wave their collective hand over the document and tell us who is right. But…But…the chief justice of the court one John Roberts is the guy who appoints the FICA judges. What else does he know about all this? Maybe nothing but who can be sure.

    Therefore, if the chief justice is tainted how exactly does the court proceed with it’s chief justice recused? How much, if anything, do the other justices know? and when did they know it?

    There is so much corruption it is impossible to work within the law or government – how chilling is that?

  11. john francis lee says:

    Why didn’t she just read the report into the Congressional Record ? If these charlatans were serious they’d stop asking permission to publish their own report. They’re not serious. They performing for emptywheel et. al. At least someone appreciates them. No one else takes them seriously.

    Kill the NSA.

    Kill the CIA, too. At least the half that kills the children all over the world with the drones.

    • Bobster33 says:

      Representative James Traficant once gave a one minute speech stating that we should get rid of the CIA and just use CNN instead. He said that CNN was cheaper, got the facts faster and more of them correct. He was eventually convicted of bribery and corruption and expelled from the House. Deep State made sure he was thrown out of the House.

  12. TomVet says:

    This is OT but relevant to CIA/govt duplicity. In regard to Lockerbie bombing, Al Jazeera has a report coming out tonight in Britain which Craig Murray says is true.

  13. Federalist10 says:

    …but will sacrificing CIA for these long unresolved crimes committed during the Bush era be enough to deflect the public’s attention from NSA’s even more sweeping transgressions that have continued to expand under BOTH administrations?

  14. Eldakka says:

    Why does Eatinger still have a law license? Isn’t this the sort of activity that should bring a lawyer up before the Bar for a review of their license?

    • Marge says:

      Isn’t Mr Eatinger supposed to be innocent until proven guilty? No one knows if any of this is even true yet.

      • bmaz says:

        Uh WHAT? It is uncontroverted that Eatinger green lighted the torture tape destruction. Oh, and in a separate case was excoriated by a federal judge for committing a fraud on the court.


        So, yeah, it is true, and lots of people “know” it.

  15. Jim White says:

    Somehow, this whole event took me back to thinking about the torture videotapes. Recall that CIA used a mega version of limited hangout on that one, revealing in 2007 that they had destroyed two videotapes and then finally fessing up in 2009 that it was really 90 tapes.


    So I wonder if something like that might be going on here. Is there more than just scanning the computers the SSCI staffers used? Like maybe a bug in the room so CIA would know what documents they needed to remove from the computer because the staffers found gold and talked about it?

  16. Elanor147 says:

    Sketching spin on things. The use of the word “approved” is really quite wrong here. Rodriguez asked if if there were any legal elements involved in destroying the tapes and Eatinger responded that no legal obstacles existed. Eatinger didn’t debate, authorize and approve the destruction. It’s like asking which sandwich is better – the tuna or the salami? When you get sick from the tuna, you wouldn’t condemn the individual that said the tuna and throw words around like “approved the use of the tuna”. Angry spinmeisters at work all day long. Give it a rest.

    • bmaz says:

      Well, that is a total load of bunk. Any competent attorney would have, and should have, IMMEDIATELY known there were evidentiary holds requiring preservation. To say otherwise is complete claptrap.

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