Charles James, the Justice Department’s antitrust chief under both Bush administrations, questioned the “secondary theories of liability” being used by the DOJ in the prosecution of foreign corruption in an interview with Corporate Counsel released Friday.

James discussed the theories in relation to an “oil for food” investigation that he settled in 2007 while working for Chevron. On Thursday, Chevron announced that James was retiring as an executive vice president at the company.

In November 2007, Chevron agreed to pay $30 million to settle allegations that it had violated the Foreign Corrupt Practices Act during its participation in the United Nations’ oil-for-food program. In its complaint against Chevron, the Securities and Exchange Commission alleged that bribes had been made by the intermediaries who helped Chevron purchase 78 million barrels of crude oil from Iraq between April 2001 and May 2002. Chevron neither confirmed nor denied the charges in its settlement

In the interview with Corporate Counsel, James said that he was not sure if due diligence is enough to keep a company from being held liable for crimes committed by intermediaries in the company’s employ, and that he questioned secondary theories of liability — holding the company liable for actions taken by its employees or contractors — as a policy resolution.

Below is excerpt of the interview, click here to see the rest of it

Q: Let’s first talk about corruption. You settled an “oil for food” investigation in 2007 for $30 million. Do you think regulators sometimes interpret the FCPA too aggressively?

A: I’m certainly not going to say that prosecution of foreign corruption is inappropriate. We settled that case and put it behind us. But I continue to think we had a strong and worthwhile legal position. One of challenges in that space is that there are virtually no FCPA cases that get litigated. This was a case in which it was alleged that Chevron should have known the people it engaged in arms-length transactions with were giving money to the Saddam Hussein regime. Nobody ever said Chevron gave anyone a dime.

Q: That certainly puts the onus on companies to do due diligence on their intermediaries. Have you improved compliance during your time overseeing the function?

A: Yes, we have increased our due diligence in this and other areas. But I’m not altogether sure, if your conduct is going to be judged by what a person actually did, that you’re really protected by due diligence. That’s one of the risks in enforcement based on secondary theories of liability. I question that as a policy resolution but in individual cases you have to do what you have to do.

Attorney General Eric Holder and Vice President Joe Biden (photo Ryan J. Reilly).

Vice President Joseph Biden said the United States would appeal the dismissal of manslaughter charges against five Blackwater guards at a meeting in Baghdad with Iraqi leaders Saturday.

The New York Times reported that Biden expressed his “personal regret” for the Blackwater shooting in 2007, in which Blackwater guards fired their guns on a crowded Baghdad traffic circle, killing 17 people, including women and children. The incident has continued to create unwanted tension between the Iraqi and American governments as the U.S. plans to withdraw thousands of combat troops from Iraq by the end of August.

“A dismissal is not an acquittal,” said Biden after a full day of meetings with Iraqi leaders to discuss the nation’s election crisis.

“The United States is determined to hold to account anyone who commits crimes against Iraqi people,” the vice president added.

“While we fully respect the independence and the integrity of the U.S. judicial system, we were disappointed with the judge’s decision to dismiss the indictment, which was based on the way some evidence had been acquired.”

Judge Ricardo Urbina of the U.S. District Court for the District of Columbia threw out manslaughter and gun charges against five former guards late last month, finding that prosecutors used immunized statements to build their case. The dismissal sparked widespread anger in Iraq.

The defendants had accused prosecutors of holding back evidence from a grand jury, misrepresenting their case to the court and making public comments about the case that prejudiced the guards.

While Urbina agreed that prosecutors acted with “disregard,” he also said the misconduct was not so severe as to bar the government from investigating the men in the future, essentially leaving the door open for a new trial.

“This is great news,” Abdel-Amir Jihan, who was wounded in the Blackwater shooting, told the Times after Biden’s announcement. “The court was not fair to us. We felt great injustice when we heard the verdict. It was not right to drop the charges against them.”

Lawyers for five former Blackwater guards charged with voluntary manslaughter are seeking a government security detail when they travel to Iraq to conduct their own investigation. The Justice Department is pushing back, calling the request “radical” and unnecessary, reports The National Law Journal.

The stakes are high for the government, as more foreign-based criminal allegations take root in federal district courts in the United States, according to The NLJ.

“The experiences of the prosecutors and the FBI in Iraq, and the substantial government resources devoted to their security, illustrate an obvious truth: American lawyers and investigators working in Baghdad face mortal danger,” wrote Steptoe & Johnson LLP partner Mark Hulkower in court papers filed earlier this month. “They require professional protection to assure their survival and to enable them to perform their work.”

The Justice Department responded in court papers filed last week, arguing that the lawyers should use one of the private security contractors working in Iraq.  The Justice lawyers said granting such a request would be an unprecedented and unwarranted exercise of judicial authority.

Judge Ricardo Urbina, of the U.S. District Court for the District of Columbia, spoke in court of his concern for the lawyers’ safety, but defense lawyers following the case told The NLJ that Urbina will likely side with the Justice Department.

“If they want armed bodyguards, by golly, there’s lot of folks who do that,” Puckett & Faraj military lawyer Neal Puckett of Alexandria, Va., told The NLJ.

Puckett, who has traveled to Iraq twice and owns his own body armor and Kevlar helmet, said he saw no basis for granting the request.

The government’s case against the Blackwater guards stems from a deadly shooting in Iraq in Baghdad’s Nisoor Square on Sept. 16, 2007. Seventeen unarmed Iraqi civilians were killed, after guards stopped in an crowded intersection and opened fire. Prosecutors say the guards were unprovoked.

The case is the first under the Military Extraterritorial Jurisdiction Act to be filed against non-Defense Department private contractors.

In a Newsweek interview released over the weekend, President Barack Obama made an interesting statement regarding former Vice President Dick Cheney’s policies that, to our knowledge, has gone without much remark:

You know, Dick Cheney had a strong perspective about national security. It was tested in the early years of the Bush administration, and I think it resulted in a series of very bad decisions. I think what’s interesting is that, in some ways, Dick Cheney actually lost these arguments inside the Bush administration.

And so he may have won early with Colin Powell and Condi Rice, but over the last two or three years of the Bush administration, I think there was a recognition among Republicans and Bush administration officials that these enhanced interrogation techniques that were being applied—that they had applied early on—were potentially counterproductive; that a posture of never talking to our enemies, of unilateral action, of framing national security only in terms of the application of force, often unilateral—that that wasn’t producing.

And so it’s interesting to me to see the vice president spending so much time trying to vindicate himself and relitigate the last eight years when, as I said, I think, actually, a lot of these arguments were settled even before we took over the White House.

While the President has shown he wants to minimize his involvement in the debate over prosecution of former Bush officials, he’s clearly trying to influence the messaging. Cheney, of course, had mammoth bureaucratic battles with Powell, who left the administration after Bush’s first term and endorsed Obama for president shortly before the 2008 elections. Powell argues the GOP won’t be back in power until it moves closer to the center of public opinion. Cheney recently took a public shot at Powell, remarking: “I didn’t know he was still a Republican.”

Obama’s Newsweek interview comes on the heels of recent revelations made by Col. Lawrence Wilkerson. The former chief of staff to Powell at the State Department referred to Cheney as the “Sith Lord” on Steven Clemons’ blog and notes:

Third–and here comes the blistering fact–when Cheney claims that if President Obama stops “the Cheney method of interrogation and torture”, the nation will be in danger, he is perverting the facts once again. But in a very ironic way.

My investigations have revealed to me–vividly and clearly–that once the Abu Ghraib photographs were made public in the Spring of 2004, the CIA, its contractors, and everyone else involved in administering “the Cheney methods of interrogation”, simply shut down. Nada. Nothing. No torture or harsh techniques were employed by any U.S. interrogator. Period. People were too frightened by what might happen to them if they continued.

What I am saying is that no torture or harsh interrogation techniques were employed by any U.S. interrogator for the entire second term of Cheney-Bush, 2005-2009. So, if we are to believe the protestations of Dick Cheney, that Obama’s having shut down the “Cheney interrogation methods” will endanger the nation, what are we to say to Dick Cheney for having endangered the nation for the last four years of his vice presidency?

Likewise, what I have learned is that as the administration authorized harsh interrogation in April and May of 2002–well before the Justice Department had rendered any legal opinion–its principal priority for intelligence was not aimed at pre-empting another terrorist attack on the U.S. but discovering a smoking gun linking Iraq and al-Qa’ida.

So furious was this effort that on one particular detainee, even when the interrogation team had reported to Cheney’s office that their detainee “was compliant” (meaning the team recommended no more torture), the VP’s office ordered them to continue the enhanced methods. The detainee had not revealed any al-Qa’ida-Baghdad contacts yet. This ceased only after Ibn al-Shaykh al-Libi, under waterboarding in Egypt, “revealed” such contacts. Of course later we learned that al-Libi revealed these contacts only to get the torture to stop.

There in fact were no such contacts. (Incidentally, al-Libi just “committed suicide” in Libya. Interestingly, several U.S. lawyers working with tortured detainees were attempting to get the Libyan government to allow them to interview al-Libi….)

As the question surrounding prosecutions shifts to Cheney pushing for torture to vindicate his decision to invade Iraq, expect more dialogue about disagreements between Cheney and the rest of the Bush administration.

And just for kicks, on Saturday Night Live, Will Ferrell wishes Cheney would be more like Vice President Joe Biden, reveals Cheney’s most embarrassing secret, and why Cheney should get off Powell’s case:

In her news-making press conference yesterday, Speaker of the House Nancy Pelosi (D-CA) laid out a timeline of what she knew and when she knew it.  According to Pelosi, the one CIA briefing that she did receive in September 2002 specifically noted that waterboarding was not being used.  Pelosi said that CIA reports indicating otherwise were untrue, and that she had been lied to in 2002.

REPORTER: So Madame Speaker, just to be clear, you’re accusing the CIA of lying to you in September of 2002?

PELOSI: Yes. Misleading the Congress of the United States.

Pelosi said that she wants the CIA to release detailed reports on her September 2002 briefing so that she can be vindicated.  Dick Cheney is also requesting documents that apparently prove his truthfulness.  In order to bolster her accusation that the CIA lied to her about waterboarding, Pelosi connected the CIA to Iraq:

at exactly the same time [as the September CIA briefing] the Bush adminstration was misleading the American people about the threat of weapons of mass destruction in Iraq.

She did admit, however, that in February 2003, she was told by an aide that top members of the House Intelligence Committee had been briefed on interrogation methods being used, including waterboarding.  Technically, she couldn’t really do anything about it.  So, the ranking Democratic member on the Intelligence Committee Rep. Jane Harman (D-CA) ended up sending a letter to the CIA general counsel Scott Muller questioning the interrogation methods.  ”That is the proper person to send the letter,” Pelosi said at the press conference. “My job (as minority leader) was to change the majority in Congress.”

In defending her good friend Pelosi, Sen. Dianne Feinstein (D-CA) said: “The CIA on this issue is in a defensive mode. Who knows whether what they’re saying is right or wrong? The CIA is not an agency that is above not telling the truth”

Another interesting quote from Pelosi that may offer a glimpse into the future:

Congress and the Administration must review the National Security Act of 1947 to determine if a larger number of Members of Congress should receive classified briefings so that information can be utilized for proper oversight and legislative activity without violating oaths of secrecy.

Shortly after Pelosi’s presser, John Boehner (R-OH) gave a response:

It’s hard for me to imagine that anyone in our intelligence area would ever mislead a member of Congress. They come to the Hill to brief us because they’re required to under the law, and I don’t know what motivation they would have to mislead anyone. And I don’t believe, and don’t feel, that in the briefings I’ve had that I’ve been mislead at any one point in time.

UPDATE: CIA Director Leon Panetta says Pelosi was told the truth.