The Law's Vital Role in America's Intelligence Debate

Why National Security Lawyers Are Essential to National Security
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In his essay, "National Security Lawyers a National Security Threat," Marshall Erwin disparages national security lawyers for, in his view, putting the nation’s security at risk.  In the process of doing so, Erwin inadvertently makes a compelling case for why national security lawyers play a vital role in helping to guide those who make and execute national security policies. 

Erwin’s essay reflects a profound misunderstanding of the issues surrounding the Snowden revelations, communications surveillance, and reform legislation – a misunderstand that cannot go unchecked. Erwin fundamentally misunderstands the issue, invoking a pop culture exhortation with its roots in Shakespeare’s Henry VI, to just blame the lawyers rather than deconstructing the matter.  Contrary to Erwin’s assertions, national security lawyers are not the problem.  To the extent there is a problem, it centers on overly aggressive intelligence professionals pushing the bounds of intelligence collection authorities beyond their limits. 

Erwin argues that legal reasoning puts American lives at risk when national security lawyers create what he considers distractions by focusing on the primacy of the law.  When did the primacy of the law stop being the most fundamental of American values?  The Supreme Court has said that even in times of war, the president does not get a blank check that enables him to ignore laws he may consider an impediment to national security.  Laws are not the problem – they are the cornerstone of what America is supposed to be all about.        

The debate over NSA and other intelligence collection activities is not about capabilities.  It is about authorities.  The dustup is not over what the NSA can do, how they can do it, or what they can get from doing it.  It is safe to assume that whatever electronic, communications, and signals intelligence capabilities Hollywood could dream up for the next Jason Bourne sequel, the intelligence community already has it or is working to develop it. 

The issue is not over whether particular programs are effective – let us assume that they are.  The issue is how far into the sphere of Americans’ lives – our personal communications, our digital footprints, our computer and cloud-based records and the electronic shadow we cast that reveals a lot about ourselves – we are willing to let the intelligence community explore, what rights we insist upon asserting against the government to guard our personal privacy, and what oversight authority by Congress and the courts we deserve to ensure the intelligence community stays within the bounds.  These are quintessential legal and civil liberties questions with constitutional dimensions. 

That does not mean they are the exclusive province of national security lawyers. Indeed, these are questions in which all Americans have a stake. But national security lawyers are uniquely qualified to play a prominent role in the debate.

The underlying issue is similar to the one the Supreme Court addressed on Wednesday in its unanimous decision that law enforcement authorities must obtain a search warrant before examining the contents of an arrestee’s smart phone.  The vast array of information about an individual that could be obtained from a smart phone might clearly be beneficial to law enforcement in ferreting out or preventing crime. But as the Court said, the benefits of a capability do not trump the Constitution.  While most have applauded the Court’s decision, Erwin may view it as nine lawyers letting the primacy of the law inflict a casualty of legal reasoning.

Finally, Erwin implies that there is a rigid barrier between “intelligence professionals” and “national security lawyers.”  Nothing could be further from the truth. Neither is an exclusive domain, but rather each is an area of expertise that complements the other on issues of national security policies, capabilities, and authorities.  The fact that “national security lawyers” sanctioned intelligence community proposals to use enhanced interrogation techniques on terrorism suspects and for the CIA to conduct drone strikes belies Erwin’s point.

We have worked closely with and advised military, defense policy, and intelligence community leaders for an aggregate of 50 years, and no one appreciates the contributions intelligence professionals like Erwin make to national security more than we do.  We are proud to have been a part of what we considered a “one team, one fight” unified effort to protect national security.  In doing so, we were always mindful of the admonition attributed to Benjamin Franklin:  “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”  National security lawyers have and will continue to play a vital role in ensuring both liberty and safety are preserved.

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