Yesterday, Jack Goldsmith defended CIA lawyer Robert Eatinger for referring Senate Intelligence Committee staffers for criminal investigation. Eatinger had no choice but to refer his Agency’s overseers, you see, because EO 12333 required it.
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 6.1(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.” [my emphasis]
But there’s a significant problem with that. In response to Ron Wyden’s question about whether CIA is subject to the Computer Fraud and Abuse Act — a polite way of suggesting CIA hacked the Committee server — John Brennan told Wyden,
The statute does apply. The Act, however, expressly “does not prohibit any lawfully authorized investigative, protective, or intelligence activity … of an intelligence agency of the United States.” 18 U.S.C. § 1030(f).
In other words, Brennan implicitly asserts the CIA snooping on SSCI was legal because CIA was engaged in lawfully authorized “investigative, protective, or intelligence activity.”
Side note: what are the chances that Brennan, who likes to remind that he’s not a lawyer when he gets legally dangerous questions, consulted with CIA’s Acting General Counsel Robert Eatinger in crafting this response to Wyden?
But let’s look at when and how Brennan chose to engage in what he claims is either “investigative, protective, or intelligence activity” and when and how Eatinger found SSCI’s oversight of CIA reached the “low bar” that merited referral.