Are National Security Lawyers a National Security Threat?

Lawyers' Outsized Role in America's Intelligence Debate

By Marshall Erwin

After a year of public debate following the Snowden disclosures and with surveillance reform legislation finally moving forward in Congress, it has become clear that the United States is under threat from within from its own national security law scholars.  These legal professionals and their counterparts in the civil liberties community have made compelling arguments for and against NSA surveillance programs.  But they serve to distract us from important questions about national security and intelligence community efficacy.  Taken in aggregate, this hurts America’s national security bottom line.

It’s no secret that the field of national security law has exploded in recent years.  National security lawyers have played a critical internal role shaping Bush and Obama administration policies as the country sought to respond to a non-state threat that defied traditional international and domestic legal constructs. 

But a new, related trend has emerged in recent years: many of these legal experts have since left government service, emerging from places like the Justice Department’s National Security Division and the General Counsel’s offices of three-letter agencies.  They now play an outsized role in public debates about national security and intelligence.  This has caused an equal and opposite reaction as civil liberties lawyers have sought to counterbalance their national security colleagues.

The problem here is the almost complete absence of intelligence experts contributing to those same debates.  Of the 43 witnesses who have testified before Congress on surveillance issues since the Snowden disclosures began last June:

·         29 were individuals whose testimony and expertise focused primarily on the law.  Twenty-four of these were outside legal experts—mostly former Administration lawyers and/or civil liberties advocates. 

·         Six others were government witnesses, like then-NSA director Keith Alexander, who provide critical perspectives but whose privileged positions prevent them from contributing fully and candidly to public debates. 

·         Of the remaining witnesses, only two had significant intelligence and national security experience: former CIA acting director Michael Morrell and former counterterrorism czar Richard Clarke. 

Put more bluntly, during a year full of hearings about surveillance, only two outside experts had actual experience as consumers of signals intelligence.

The power of lawyers to influence intelligence debates is the natural result of the cloistered system in which intelligence experts operate.  The laws governing America’s intelligence community and authorizing intelligence collection are publicly available.  Legal interpretations of statute, such as Foreign Intelligence Surveillance Court (FISC) opinions, are often classified but are also inherently less sensitive than the intelligence programs they sanction or restrain.  They are based on legal reasoning and statute, plus bits of classified information that can easily be redacted.  These documents and statute provide a wealth of information that legal experts can analyze and comment upon. 

In comparison, as demonstrated by the DNI’s new pre-publication review policy, both current and former intelligence community officials are far more limited in terms of what they can say publicly. 

Couple this with the different cultures of the legal and intelligence communities.  Legal professionals are trained to engage in public scholarly debate.  Intelligence professionals are trained to shun public discourse.  The result is a situation in which expertise on national security law serves as a stand-in for national security expertise.  Public dialogue focuses to a far greater extent on legal concerns rather than on a deep understanding of national security challenges and of the means to effectively confront those challenges.  The recent debate about surveillance policy demonstrates this, as do debates about issues such as targeted strikes and detainees.

When advocating for or against a particular intelligence activity, the question the national security law expert asks is whether an intelligence program is legal and, if so, whether appropriate limits and oversight mechanisms exist to ensure the program remains legal.  Note how similar this is to the common refrain we have heard from individuals such as the DNI’s top lawyer, Robert Litt, who has argued convincingly that surveillance programs are legal and operate under a strict oversight regime. 

The question an intelligence expert would ask is whether a particular activity or program is effective at protecting national security.  Answers to this question lead to very different policies.  The right policy must consider both questions.  Currently, public debate focuses much more on the question of legality. 

Even as the USA FREEDOM Act begins to move forward in Congress, we have yet to have a full discussion about the benefits, costs, and general efficacy of NSA surveillance programs.  Some of these programs are almost certainly incredibly important for national security.  Others are not.  Because of the absence of intelligence experts in the surveillance debate, we have little means to distinguish one from the other. 

As a result, the NSA surveillance activities that are allowed to continue will certainly emerge from this process on a firmer legal footing.  But when we give such primacy to the law, it will also be the case that some intelligence collection programs survive this debate despite their limited efficacy while other more valuable programs that could save American lives become casualties of legal reasoning.  

Marshall Erwin is a Research Fellow at the Hoover Institution.  He previously served as the lead intelligence specialist at the Congressional Research Service, as a professional staff member on the Senate Homeland Security and Government Affairs Committee, and as a counterterrorism analyst in the intelligence community.

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