Salon.com Life | You say "trans-panic," I say "hate"You say "trans-panic," I say "hate"
Was the murder of a transgender woman sparked by bias, deception or both?
Tracy Clark-Flory
Apr. 18, 2009 |
In what is believed to be a historic first, a hate-crime statute is being used to prosecute the murder of a transgender person. Last summer in Greeley, Colo., 18-year-old Angie Zapata was allegedly beaten to death with a fire extinguisher after Allen R. Andrade discovered that she was transgender. The two had met online and hung out at Zapata's apartment for two days, during which she gave her 32-year-old companion a blow job. At one point, she left him alone in the apartment and he discovered photographs that raised his suspicions about her sex. When she returned, Andrade allegedly confronted her, grabbed her crotch and, discovering she had a penis, brutally murdered her.
During opening statements on Thursday, Andrade's attorney argued that his client simply "snapped" and "flew into an uncontrollable rage" after finding out that the beauty he had courted online was actually born male. Yes, it's that familiar trans-panic defense, a close relative to the gay-panic defense. In a lawyerly twist of logic, though, the defense team is rejecting the hate-crime charge, which would lengthen Andrade's sentence, and arguing that Zapata's sexual identity did not spark the defendant's murderous rage. Public defender Bradley Martin argued: "It's about a deception and the reaction to that deception." Which is kind of like saying: "It wasn't a reaction to finding out she was transgender, it was a reaction to finding out she was transgender." Well, in that case.
The prosecution, of course, sees things differently. In fact, they argue Andrade plotted to kill Zapata 36 hours after his discovery of the deception. Deputy District Attorney Brandi Nieto says statements he has made will support the fact that the murder was a hate crime. Indeed, the statements already made public paint a vivid picture of a hateful homophobe: He was recorded in a phone conversation saying "gay things need to die" and told police that he was pretty sure he had "killed it" after hitting Zapata in the head until she stopped breathing. Andrade was also recorded telling his girlfriend: "It is not like I went up to a schoolteacher and shot her in the head or killed a straight law-abiding citizen." (A law-abiding citizen! Says the man who admitted to bashing in someone's skull.)
It's been a while since trans-panic and gay-panic pleas have shown up on my radar, but this case -- as have many cases before -- serves as an enraging reminder that those defenses are so often only euphemisms and apologies for hate.
Revenge of the RINOs - The Daily BeastRevenge of the RINOs
by Meghan McCain
April 18, 2009 | 8:14pm
Republican in Name Only? Try the future of the GOP. The following is Meghan McCain's address to the Log Cabin Republicans Convention—a group that promotes gay issues within the GOP—on April 18, 2009.
Thank you all for having me here tonight. I am thrilled to be able to speak to you this evening to share some of my experiences from the campaign and observations on where our party is today. And I’m proud to tell you there is a special role for the Log Cabin Republicans to play in our future.
The last two years of my life have been an amazing series of moments. Some sad, some thrilling and others mesmerizing. I want to tell you about some of those moments as well as the ones that are yet to come.
I have been humbled by the outpouring of support that I received during the campaign. The tumultuous ride of my father’s quest for the Presidency has been well chronicled. In October, 2007 I launched the site McCainBogette.com. I chose to do my part in telling the campaign’s story from my perspective for a variety of reasons.
First and foremost, I realized my Dad would always have to deal with people perceiving him as “too old” to be President. I know what you’re all thinking: Why would anyone think that? As with many things, reality is sometimes so different from what people perceive.
I know my father better than anyone. And if he could have a 23 year old wiseass like me as a daughter, then that certainly doesn’t make him too old. Someone had to tell the nation that, and I was up to the challenge.
Second, I have been a child of politics since the day I was born.
As you can imagine and have seen, politics can be a nasty sport. And between you and me, many of the people in this business tend to take themselves entirely too seriously. I wanted to break out of that. I wanted people to see the normal aspects of political life. From the messy motel rooms to the steady diet of doughnuts and Red Bull. From the moments of endless energy to the quiet times you share with family and friends.
And from the times of incredible pride to the ones where the world around you seems like it’s unraveling in a storm of insanity. I wanted to give people a first hand look into an experience few ever have seen.
And finally, I wanted to be me. That perhaps was the most challenging reason of all. I have been fortunate to have been blessed with two amazing parents who have led lives motivated by helping others. But I am also my parents’ daughter. I have my mother’s grace under fire.
And I have my Dad’s “heartburn-inducing” ability to say what he thinks almost whenever he wants. The person who stands before you is not confined within the mold of what a daughter of a Republican Presidential candidate “should” be for some. And that’s OK. Our world is not confined by molds and neither should our nation.
That’s what I saw for fourteen months on the campaign trail. Of course it wasn’t all that you might expect. My hair stylist, Josh Rupley who is here tonight and a proud new member of the Log Cabin Republicans, joined us on the trail for the last few months of the campaign. I was not prepared for the uptick in date requests I received via email during that time. And I mean date requests for Josh, not me. His presence really seemed to cause quite a stir on the site and we still get a huge kick out of it.
That brings us to today. I honestly did not expect my personal journey in politics would become more interesting since election day. But that's exactly what has happened. It took months for the campaign highs and lows to subside. When 2009 began, I had a fresh outlook on life and decided to pursue writing. I still wanted to focused on that delicate blending of Republican politics and who I am and what I think. I was thrilled to be asked to write for Tina Brown’s website The Daily Beast. My most notorious article to date was entitled, “My Beef with Ann Coulter.” Ok, so much for being delicate.
I am concerned about the environment. I have a tattoo. I believe government should always be efficient and accountable. I have lots of gay friends. And yes, I am a Republican.
What’s happened since has been unexpected, humbling and motivating. I did not expect my frustration with what I perceive to be overly partisan and divisive Republicans to cause a national incident. And no, I’m not that engaged with myself to think it was even that much of an incident.
People in our country have much more important issues to deal with on a daily basis. But the experience did reinforce what I learned on the campaign trail in some major ways.
I’ll summarize them in three points:
1. Most of our nation wants our nation to succeed.
2. Most people are ready to move on to the future, not live in the past.
3. Most of the old school Republicans are scared shitless of that future.
You know the old problem: Political discussion just breaks down into bickering and fighting instead of solving. And Republicans have a tendency to get way too hung up on words. I’m not just talking about the occasional profanity. When someone says they “hope the President succeeds” they say it with the hope that the country gets better, the economy improves and people can feel safe, confident and free to live their lives as they choose. And may I add in full equality with each other.
I believe most people get that, and more people are getting it everyday.
I believe most of our nation wants our nation to succeed.
I feel too many Republicans want to cling to past successes. There are those who think we can win the White House and Congress back by being “more” conservative. Worse, there are those who think we can win by changing nothing at all about what our party has become. They just want to wait for the other side to be perceived as worse than us. I think we’re seeing a war brewing in the Republican party, but it is not between us and Democrats. It is not between us and liberals. It is between the future and the past. I believe most people are ready to move on to that future.
We know a party that was thriving at one point on a few singular issues cannot see long term success. Even worse, we’ve seen how it has contributed to some serious problems in our nation and world.
Let me blunt, you can’t assume you’re electing the right leaders to handle all the problems facing our nation when you make your choice based on one issue. More and more people are finally getting that.
Simply embracing technology isn’t going to fix our problem either. Republicans using Twitter and Facebook isn’t going to miraculously make people think we’re cool again. Breaking free from obsolete positions and providing real solutions that don’t divide our nation further will. That’s why some in our party are scared. They sense the world around them is changing and they are unable to take the risk to jump free of what’s keeping our party down.
What I am talking about tonight is what it means to be a new, progressive Republican. Now some will say I can’t do that. If you aren’t this and that, then you’re clearly a “Republican in Name Only,” also affectionately known as a RINO.
Suggesting the notion that one can be faithful to the original core values of the GOP while open to the realities of our changing world has really hit a chord with people. And it seems to be the next, natural stage of the journey I’ve been traveling.
It would be easy to say my generation views politics very differently from others. Maybe we’re more progressive, socially liberal or just hate arguing in lieu of actually solving the problems at hand. But what I’ve learned though my experiences is that these feelings are not contained to one age group. They’re the growing beliefs and desires of people of all ages, races, genders, faiths, persuasions and political parties.
So tonight, I am proud to join you in challenging the mold and the notions of what being a Republican means.
I am concerned about the environment. I love to wear black. I think government is best when it stays out of people’s lives and business as much as possible. I love punk rock. I believe in a strong national defense. I have a tattoo. I believe government should always be efficient and accountable. I have lots of gay friends. And yes, I am a Republican.
If there is one thing that gives me hope about the future of our party and the role you and the Log Cabin Republicans can play in it is this: there’s never been a better time to speak out. People are listening. And, they’re more open minded than ever before. Maybe it’s because they’re worried about the future. Maybe it’s because they’re so disenchanted with the past. It’s probably a little of both.
But know this: The moment to make a difference is now and I am proud to share it with you. America’s best days are ahead of us. And we will show our nation that we will get there together.
Thank you again for having me speak tonight. And thank you for all you are doing to help make a new Republican party a reality.
N.S.A.’s Intercepts Exceed Limits Set by Congress - NYTimes.comN.S.A.’s Intercepts Exceed Limits Set by Congress
By ERIC LICHTBLAU and JAMES RISEN
WASHINGTON — The National Security Agency intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year, government officials said in recent interviews.
Several intelligence officials, as well as lawyers briefed about the matter, said the N.S.A. had been engaged in “overcollection” of domestic communications of Americans. They described the practice as significant and systemic, although one official said it was believed to have been unintentional.
The legal and operational problems surrounding the N.S.A.’s surveillance activities have come under scrutiny from the Obama administration, Congressional intelligence committees and a secret national security court, said the intelligence officials, who spoke only on the condition of anonymity because N.S.A. activities are classified. Classified government briefings have been held in recent weeks in response to a brewing controversy that some officials worry could damage the credibility of legitimate intelligence-gathering efforts.
The Justice Department, in response to inquiries from The New York Times, acknowledged Wednesday night that there had been problems with the N.S.A. surveillance operation, but said they had been resolved.
As part of a periodic review of the agency’s activities, the department “detected issues that raised concerns,” it said. Justice Department officials then “took comprehensive steps to correct the situation and bring the program into compliance” with the law and court orders, the statement said. It added that Attorney General Eric H. Holder Jr. went to the national security court to seek a renewal of the surveillance program only after new safeguards were put in place.
In a statement on Wednesday night, the N.S.A. said that its “intelligence operations, including programs for collection and analysis, are in strict accordance with U.S. laws and regulations.” The Office of the Director of National Intelligence, which oversees the intelligence community, did not address specific aspects of the surveillance problems but said in a statement that “when inadvertent mistakes are made, we take it very seriously and work immediately to correct them.”
The questions may not be settled yet. Intelligence officials say they are still examining the scope of the N.S.A. practices, and Congressional investigators say they hope to determine if any violations of Americans’ privacy occurred. It is not clear to what extent the agency may have actively listened in on conversations or read e-mail messages of Americans without proper court authority, rather than simply obtained access to them.
The intelligence officials said the problems had grown out of changes enacted by Congress last July in the law that regulates the government’s wiretapping powers, and the challenges posed by enacting a new framework for collecting intelligence on terrorism and spying suspects.
While the N.S.A.’s operations in recent months have come under examination, new details are also emerging about earlier domestic-surveillance activities, including the agency’s attempt to wiretap a member of Congress, without court approval, on an overseas trip, current and former intelligence officials said.
After a contentious three-year debate that was set off by the disclosure in 2005 of the program of wiretapping without warrants that President George W. Bush approved after the Sept. 11 attacks, Congress gave the N.S.A. broad new authority to collect, without court-approved warrants, vast streams of international phone and e-mail traffic as it passed through American telecommunications gateways. The targets of the eavesdropping had to be “reasonably believed” to be outside the United States. Under the new legislation, however, the N.S.A. still needed court approval to monitor the purely domestic communications of Americans who came under suspicion.
In recent weeks, the eavesdropping agency notified members of the Congressional intelligence committees that it had encountered operational and legal problems in complying with the new wiretapping law, Congressional officials said.
Officials would not discuss details of the overcollection problem because it involves classified intelligence-gathering techniques. But the issue appears focused in part on technical problems in the N.S.A.’s ability at times to distinguish between communications inside the United States and those overseas as it uses its access to American telecommunications companies’ fiber-optic lines and its own spy satellites to intercept millions of calls and e-mail messages.
One official said that led the agency to inadvertently “target” groups of Americans and collect their domestic communications without proper court authority. Officials are still trying to determine how many violations may have occurred.
The overcollection problems appear to have been uncovered as part of a twice-annual certification that the Justice Department and the director of national intelligence are required to give to the Foreign Intelligence Surveillance Court on the protocols that the N.S.A. is using in wiretapping. That review, officials said, began in the waning days of the Bush administration and was continued by the Obama administration. It led intelligence officials to realize that the N.S.A. was improperly capturing information involving significant amounts of American traffic.
Notified of the problems by the N.S.A., officials with both the House and Senate intelligence committees said they had concerns that the agency had ignored civil liberties safeguards built into last year’s wiretapping law. “We have received notice of a serious issue involving the N.S.A., and we’ve begun inquiries into it,” a Congressional staff member said.
Separate from the new inquiries, the Justice Department has for more than two years been investigating aspects of the N.S.A.’s wiretapping program.
As part of that investigation, a senior F.B.I. agent recently came forward with what the inspector general’s office described as accusations of “significant misconduct” in the surveillance program, people with knowledge of the investigation said. Those accusations are said to involve whether the N.S.A. made Americans targets in eavesdropping operations based on insufficient evidence tying them to terrorism.
And in one previously undisclosed episode, the N.S.A. tried to wiretap a member of Congress without a warrant, an intelligence official with direct knowledge of the matter said.
The agency believed that the congressman, whose identity could not be determined, was in contact — as part of a Congressional delegation to the Middle East in 2005 or 2006 — with an extremist who had possible terrorist ties and was already under surveillance, the official said. The agency then sought to eavesdrop on the congressman’s conversations, the official said.
The official said the plan was ultimately blocked because of concerns from some intelligence officials about using the N.S.A., without court oversight, to spy on a member of Congress.
Leon Panetta Digs Deeper - The Daily BeastLeon Panetta Digs Deeper
by John Sifton
April 9, 2009 | 10:02pm
A day after the release of a blockbuster Red Cross report on torture—and an article in The Daily Beast—the CIA director reiterated his stance that many agency employees who might have participated in torture shouldn’t be investigated or prosecuted.
The pressure seems to be getting to CIA Director Leon Panetta. On Monday night, a confidential report by the International Committee of the Red Cross detailing CIA torture and detention practices during the Bush administration was published by the New York Review of Books. In an article for the Daily Beast on April 8, I wrote that Panetta’s position against the investigation and prosecution of those potentially guilty of criminal activity is compromised because a number of his top aides are implicated in the torture program. The following day, April 9, possibly in response to the growing furor, Panetta sent a letter to CIA employees, referring to the “continuing media and congressional interest in reviewing past rendition, detention, and interrogation activities that took place dating back to 2002,” including issues involving the involvement of private contractors in CIA activities.
In his letter, Panetta outlines the Agency’s “current policy regarding interrogation of captured terrorists,” stating: “Under the Executive Order, the CIA does not employ any of the enhanced interrogation techniques that were authorized by the Department of Justice from 2002 to 2009.” He also declares: “CIA officers do not tolerate, and will continue to promptly report, any inappropriate behavior or allegations of abuse.” He seems defensive.
Panetta also makes the following interesting statement: “CIA no longer operates detention facilities or black sites and has proposed a plan to decommission the remaining sites. I have directed our Agency personnel to take charge of the decommissioning process and have further directed that the contracts for site security be promptly terminated. It is estimated that our taking over site security will result in savings of up to $4 million.”
This is a strange set of claims and it is difficult to know how to parse them. Panetta seems to be saying that “there are no sites,” that “we’ve submitted a plan to close the sites,” and that “we’re closing the sites” all at the same time. But then he also makes it sound as though the CIA is “taking charge” of the sites from contractors, and that “taking over” the sites will save $4 million, suggesting they’re being kept open for the time being. (From where comes the $4 million in savings? If the sites are being closed, isn’t the money saved anyway?) Each of his statements seems to contradict the last. At a later point in the note, Panetta writes, “CIA retains the authority to detain individuals on a short-term transitory basis.” But where is the agency going to hold them, if the sites are closed? Panetta does not explain.
In short, Panetta’s note simply doesn’t make sense. In the end, his point seems to be that the sites exist, but are not being used currently, and may be closed in the future—except that they won’t, because the CIA retains the power to detain. Is Panetta really aware of what is actually going on?
Perhaps he’s discombobulated. Panetta has increasingly been in the hot seat because of his remarks indicating that he believes no CIA personnel should be investigated for abuse if their actions relied on legal assurances from the Department of Justice—a reference to memos written during the Bush administration by the Office of Legal Counsel, which, through deeply flawed and now repudiated legal analysis, attempted to offer legal justifications for the CIA’s various torture techniques from 2002-2006. (These methods include sleep deprivation, forced standing, and prolonged isolation—methods used by the Soviets and North Koreans—to outright physical assaults, binding or confining prisoners into painful positions, and waterboarding.)
Panetta reiterated the claim on Wednesday in his letter to CIA employees, writing, “Officers who act on guidance from the Department of Justice—or acted on such guidance previously—should not be investigated, let alone punished. This is what fairness and wisdom require.”
But as I discussed in my Daily Beast article, Panetta’s arguments about “legal reliance” are misplaced and inaccurate as a matter of criminal law. And as a general matter, it increasingly appears as though he’s more interested in protecting various CIA officials beneath him—holdovers from the Bush era—than in cleaning up the CIA.
It is important to note, however, that “cleaning up the CIA” doesn’t mean a purge. The agency has thousands of officers and directors, and only a few are implicated in the past crimes. In any case, many of the most tainted directors have already left.
Moreover, investigations of existing staff shouldn’t focus on lower level officers. Accountability, if it ever occurs, should focus primarily on executive level directors, like the current CIA Deputy Director, Stephen Kappes, and the Director of the CIA’s National Clandestine Service, Michael Sulick—both high-level officials in the CIA’s operations directorate when the worst detainee abuses were committed.
Investigations should focus also on high-level executive officers in the CIA’s Counterterrorism Center (CTC) who are still at the agency, for example, G— —, a former deputy to Jose Rodriquez, the chief of CTC back in 2002-2004 and who now enjoys a prestigious CIA chief of station posting in Europe. (I can’t reveal her name or posting here; it remains covert. It should also be noted that the former CTC chief of operations also remains at the agency.)
Yet it is inappropriate to place this whole mess on Panetta’s shoulders. Attorney General Eric Holder is also a central actor in these matters. It is the Department of Justice’s responsibility to investigate and if possible prosecute alleged cases of torture and other violations of criminal law. Members of Congress, too—especially senior leaders on the Senate and House intelligence committees—have an obligation to insist on accountability from the administration.
Ultimately, of course, the failure of the Obama administration to address the Bush administration’s crimes lies with President Obama himself. So far he is sending the wrong message to both CIA and the Department of Justice. And yet the furor continues to grow. President Obama will only lose more credibility if he tries to ignore it.
The CIA Torture Coverup - The Daily BeastThe CIA Torture Coverup
by John Sifton
April 7, 2009 | 9:34pm
Why doesn’t Leon Panetta want the agency investigated or prosecuted for torture allegations? Maybe because some of the men implicated, John Sifton reports, are the ones advising him.
On Monday night, the confidential report of the International Committee of the Red Cross on the CIA’s secret detention and interrogation program was published on the Web site of the New York Review of Books. The report confirms previous allegations about CIA abuses against detainees. Unlike earlier reporting, however, the document is based on irrefutable first-hand information: interviews with detainees and U.S. officials. The document describes in stark detail the CIA’s use of forced standing, sleep deprivation, prolonged isolation, assaults, and waterboarding. It also discloses the participation of CIA medical personnel in torture.
Because the basic facts about their involvement in the CIA interrogation program are now known, Panetta’s actions are increasingly looking like a coverup.
Some revelations in the ICRC report have already become known through the reporting of journalists Mark Danner and Jane Mayer. As a result, press accounts have focused on the fresh news of medical personnel supervising and overseeing abuse. But other important facts about the report have been overlooked that make the question of torture not simply a matter of the past.
The New York Times reported that Leon Panetta, the current CIA director, has taken the position that “no one who took actions based on legal guidance from the Department of Justice at the time should be investigated, let alone punished.” Yet a number of CIA officials implicated in the torture program not only remain at the highest levels of the agency, but are also advising Panetta. Panetta’s attempt to suppress the issue is making Bush’s policy into the Obama administration’s dirty laundry.
Take Stephen Kappes. At the time of the worst torture sessions outlined in the ICRC report, Kappes served as a senior official in the Directorate of Operations—the operational part of the CIA that oversees paramilitary operations as well as the high-value detention program. (The directorate of operations is now known as the National Clandestine Service.) Panetta has kept Kappes as deputy director of the CIA—the No. 2 official in the agency. One of Kappes’ deputies from 2002-2004, Michael Sulick, is now director of the National Clandestine Service—the de facto No. 3 in the agency. Panetta’s refusal to investigate may be intended to protect his deputies. Because the basic facts about their involvement in the CIA interrogation program are now known, Panetta’s actions are increasingly looking like a coverup.
Another overlooked fact is this: The ICRC report is an important legal document that contains well-sustained allegations of criminal conduct with legal significance. Unlike earlier claims in books, magazines, and newspapers, the ICRC’s allegations are official notices from a legally recognized entity. The ICRC, after all, is not Human Rights Watch, the Washington Post, or the New Yorker, all of which have reported on the CIA’s secret prison program. The ICRC is an official entity recognized under the Geneva Conventions and various other earlier international treaties relating to armed conflict and prisoners of war. The ICRC is specifically tasked under the Geneva Conventions to visit prisoners and communicate with detaining powers to uphold the conventions’ spirit and purpose. Its interpretations and statements on matters of international law are held as legally authoritative. As such, the ICRC’s allegations have legal significance beyond previous disclosures. In effect, the document itself is evidence in a criminal case.
Note in particular the report’s date, February 14, 2007—Valentine’s Day. On that date, the U.S. government was put on notice about the allegations of CIA torture. (The ICRC also wrote to the U.S. governments about the issue of disappearances at several points in 2003-2006.)
Under international law—the Geneva Conventions, the Convention Against Torture, and basic precepts of customary international law—the United States has a positive obligation to investigate and prosecute persons alleged to have committed torture and other violations of the laws of war. As of Valentine’s Day 2007, and possibly earlier, the U.S. government was obligated to investigate and prosecute the abuses detailed in the report. The United States’ failure to do so is a recurring breach of international law. If the Spanish case against six high-level Bush administration officials accused of authorizing torture proceeds, the Red Cross report—among other documents—may be entered as evidence. Further international prosecutions that the U.S. is obligated to respect may go down the chain of command to Panetta’s deputies.
The ICRC report does not contain information about the identities of CIA personnel involved in the program, although there are descriptions of some individual interrogators; nor does it discuss the involvement of senior government officials in the program.
Nonetheless, footnote 9 reveals that the ICRC was informed by the then-director of the CIA, Michael Hayden, that interrogation plans for detainees were submitted to the “CIA headquarters” for approval and as of 2007 were approved by “the director or deputy director of the CIA.” It is likely that this approval process existed at earlier points in 2002-2006.
This is more than an interesting detail. In fact, it could implicate several high-level CIA officials in torture, including previous CIA directors George Tenet (resigned 2004) and Porter Goss (resigned 2006), as well as deputy directors John McLaughlin (resigned 2004) and Albert Calland (resigned 2006). These CIA officials are no longer serving. Kappes, Sulick, and others are still there.
Panetta’s refusal to endorse investigations and prosecution is based in part on opinions issued in memos in 2002 to 2003 from the Bush administration’s Justice Department Office of Legal Counsel to the effect that the CIA’s interrogation tactics were legal.
The OLC memoranda, however, were highly controversial even within the Bush administration, and today there are almost no lawyers or academics in the United States who defend their reasoning. Parts of the memoranda were withdrawn in 2005 and the Obama administration has repudiated their contents. But the memos were on the books for a time and conventional wisdom among academics as well as some Obama officials is that it would be difficult to prosecute a CIA officer who relied on legal assurances contained in them. In criminal law, there are legal defenses to prosecution when a government agent, in good faith, relies on an official legal interpretation as to what is or is not legal and then commits otherwise illegal activity. (To take an example: It would not be appropriate to prosecute an undercover DEA agent if he smoked marijuana with drug dealers as part of efforts to gain their trust, especially if the agent were told by a Department of Justice lawyer that it was legal to do so.)
But Panetta’s “reliance on counsel” argument is off base. First, some of the worst torture that occurred as part of the CIA program occurred in the case of Abu Zubaydah—and most of that abuse occurred before the relevant OLC memoranda were even written.
Second, the reliance defense is not an absolute shield to prosecutions: it is a defense available to individual defendants on a case-by-case basis. A court must decide, from case to case, whether the defense applies.
And, ultimately, the reliance in question must be in good faith. Prosecutors may be able to show in higher-level cases that officers like Tenet, Goss, and others believed that the memoranda were flawed and therefore were not acting in good faith. Moreover, if prosecutors can show that a reasonable attorney would or should have known the memoranda were incorrect as a matter of law, they might be able to prosecute attorneys within the White House and CIA—such as former OLC attorney John Yoo and CIA Acting General Counsel John Rizzo—on grounds that by writing or promulgating the memoranda they participated in a criminal enterprise aimed at allowing the president and his staff, and the CIA, to evade federal criminal law.
Of course, such investigations are politically tricky. In order to avoid being tainted, President Obama might appoint a special prosecutor, fire implicated CIA officials (there are plenty of CIA rank and file who would be glad to see them go), and wash his hands of political fallout. In any case, he has to do something. Even if Panetta wishes it, the torture scandal is not going away.
John Sifton is a private investigator and attorney based in New York City. His firm, One World Research, carries out research for law firms and human-rights groups, including in South Asia, the Middle East and North Africa. He has conducted extensive investigations into the CIA interrogation and detention program.
