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Does the Intelligence Community Fear Lawyers…or Legal Scrutiny?

[Editor’s Note: See Marshall Erwin’s response to General Dunlap here.]

In a provocatively entitled essay, Are National Security Lawyers a National Security Threat? Marshall Erwin, a research fellow at the Hoover Institution and former “lead intelligence specialist” at the Congressional Research Service, asks if national security lawyers are a “security threat” because, as he claims, they “distract us from important questions about national security and intelligence community efficacy,” and “this hurts America’s national security bottom line.”

Mr. Erwin is disturbed because he believes that lawyers play “an outsized role in public debates about national security and intelligence.”  He seems particularly vexed about the fact that of the “43 witnesses who testified before Congress on surveillance issues since the Snowden disclosures began last year” only two of the outside experts, in his judgment anyway, had “actual experience as consumers of signals intelligence.”

It is understandable — indeed, commendable – that Mr. Erwin is concerned about ensuring that there is a public airing of all views about the current state of intelligence gathering.  That should certainly include robust representation of intelligence community practitioners as well as the “consumers” as Mr. Erwin puts it.

But Mr. Erwin goes way too far when he suggests that the involvement of national security lawyers actually amounts to a “national security threat.” Accusing honorable men and women of the legal profession of actually posing a threat to America’s security is a very serious matter, and the kind of histrionics that does not encourage serious discussion about the challenges the intelligence community faces.

Neither Mr. Erwin nor anyone else should be especially surprised that lawmakers concerned about the adequacy of the law would want to hear from lawyers. Given that the key issues in the post-Snowden era mostly relate to privacy and civil liberties, subjects about which lawyers – not intelligence specialists – have real expertise and experience, congressional interest in what lawyers have to say hardly should be unexpected.

Moreover, one reason that some “intelligence experts”–as Mr. Erwin might conceive them–are taking something of a backseat in these discussions might be related to the fact that the intelligence community as a whole has something of a credibility problem.

Indeed, the “efficacy” of their work has been marred by a collection of rather high profile failures beginning with 9/11 itself, continuing with the erroneous assessment in 2003 that Iraq had weapons of mass destruction, furthered by such mistakes as the failure to gauge China’s advanced development of the J-20 fighter, and more recently illustrated by the surprise about Russia’s aggressive activities in the Ukraine.  Add to these the fact that the US government is apparently caught flat-footed by the startling rise of ISIS in Iraq, and it becomes clear why the “efficacy” of the current process might be subject to question.

Additionally, perceptions about intelligence professionals were not helped by the unfortunate congressional testimony last year by Director of National Intelligence James Clapper.  Mr. Clapper was eventually forced to admit that he gave “untruthful answers” about the collection of data on Americans, albeit answers that he now claims (as if it were a valid excuse) were “the least untruthful” ones he could muster.

Thinking that in a democracy it is somehow “okay” to collect vast amounts of information regarding innocent Americans and then to publicly give “untruthful answers” about doing so to the very body the American people rightly expect to exercise oversight is an example of how out of sync at least some in the community may be with the values of the nation they serve.

Despite these public embarrassments, no one doubts that the intelligence community is filled with specialists who are upright, hard-working, intelligent, and patriotic Americans.  But much the same can be said about the legal profession.

Rather than attacking lawyers, it might be more useful for Mr. Erwin and those who share his views to consider that the “efficacy” of a particular national security operation –intelligence or otherwise – involves the manner in which the United States conducts its activities which have strategic implications at home and abroad.

In a democracy, public support is vitally important, and perceptions of legality underpin it.  As Yale Law Professor Michael Reisman and his co-author Chris Antoniou observed in 1994, “even a limited armed conflict requires a substantial base of popular support.”  That support, they note, “can erode or even reverse itself rapidly, no matter how worthy the political objective, if people believe that the war is being conducted in an unfair, inhumane, or iniquitous way.”

Thus, it is a grave mistake even to suggest, as Mr. Erwin does, that somehow the “efficacy” of intelligence programs within a democracy can be separated from their legality.  If people come to believe that intelligence programs are being conducted in an unlawful manner, the public confidence so essential to supporting them will surely erode.

In that respect, Mr. Erwin’s essay indicates that he and perhaps other intelligence specialists do not fully appreciate how their enterprise, rightly or wrongly, is viewed by the US public. The fact is most Americans believe the intelligence community has overreached.  This is certainly not in the interest of the intelligence community nor, really, the nation.

How can the intelligence community regain America’s trust?  Part of the answer is ensuring that the letter and spirit of the law is followed, and it is lawyers who are among the best equipped to facilitate that task.

Still, are lawyers somehow incompetent to address what Mr. Erwin calls “important questions about national security and intelligence community efficacy”?

A little history may help with the answer.  Actually, lawyers have a long and storied history of leadership in the intelligence community.  William J. “Wild Bill” Donovan, who headed the Office of Strategic Services during World War II and who is considered by many experts to be the “Father of American Intelligence” and the “Father of Central Intelligence,” was a Wall Street lawyer. In addition, no fewer than six lawyers have led the CIA since its inception (Allen Dulles, William Colby, William Casey, William Webster, James Woolsey, and  Leon Panetta).

And it was attorneys – mainly military lawyers – who fought the waterboarding and other interrogation techniques that a few intelligence specialists advocated and practiced.  In fact, it seems that these lawyers who opposed what some intelligence professionals wanted at the time actually had a better grasp on the “efficacy” of interrogation techniques than most of the non-lawyers.  We now know that former FBI agent and master terrorist interrogator Ali Soufan, spurned torture and other extreme interrogation techniques.  Why? Because of nervousness about legality?  No. Rather, it was simply because torture as a technique to gain intelligence is ineffective.

In short, in addressing 21st Century security threats, especially those requiring international support to confront successfully, adherence to the law as to the methodologies employed is, as one expert put it, a “strategic imperative.”  Accordingly, Mr. Erwin is mistaken if he thinks that only an “intelligence expert” has competence to determine, as he puts it, “whether a particular activity or program is effective at protecting national security.” Following the law is more than simply the right and moral thing to do–it is a decisive element of 21st Century conflicts.

Lawyers have a lot of skills relevant to the intelligence “business” and, indeed, all sorts of enterprises.  Why?  Law school and legal practice imprint upon attorneys an array of generic intellectual tools that gives them certain advantages over those who lack that background.

Law school has a lot to do with this.  Sure, law schools focus on the practice of law, but the reality is that much of what they teach is a very special way of thinking that finds applicability outside the classic practice of law.  For example, studying criminal law develops the ability to break up issues into constituent elements, as well as to understand the behavior of human beings under extreme stress.  A course in evidence explains to what degree information is worthy of belief (if at all), and it imparts the ability to discern the relevant “needles” from “haystacks” of data.

Likewise, lawyers are well experienced in rapidly acquiring substantive knowledge about a particular matter as they must do in order to effectively serve clients who are engaged in a cornucopia of activities. Moreover, lawyers are professionally trained to distill extraordinarily intricate matters into a format understandable to clients who lack expertise.

Perhaps of most relevance is the human psychology that a lawyer learns from the study and practice of advocacy, often in the courtroom, but sometimes in the boardroom and elsewhere. They are taught to recognize and counter the fallacies that others may propound.  Like the intelligence officer, lawyers spend a lot of time cogitating about how other people think and what individuals or groups might do in a given situation.  These are highly-valued skills applicable in many circumstances.

Senior decision-makers in military and national security affairs seem to know instinctively that lawyers “think in a different way” – and those decision-makers are often thirsty for fresh perspectives. In that regard, it doesn’t hurt that the best lawyers are trained and comfortable in telling people what they need to hear versus what they want to hear.

All this may explain why lawyers (or at least those who are trained in the law) are increasingly found in important positions outside the practice of law per se.  For example, we are seeing a growing number of lawyers who become CEOs and leaders in all sorts of businesses.

Specific to national security, those with legal training have demonstrated not just competence in the national security arena writ large but leadership as well.  Two of America’s most successful expeditionary commanders were lawyers (General Winfield Scott and General John Pershing).  Even more importantly, America’s most successful war-fighting commanders-in-chief – Abraham Lincoln and Franklin Roosevelt – were lawyers.

Mr. Erwin’s essay bears an unfortunate resemblance to Michael Barone’s 2007 US News & World Report Overlawyered War  wherein he complained that lawyers were disproportionately among those who, Barone said, were opposed to such things as “wiretapping terrorist suspects without warrants,” and “increased surveillance.”  As the polls show now, lawyers were, apparently, “disproportionately” in tune with the American people on these key intelligence issues.

Until Mr. Erwin and anyone else who may share his views accept the very serious legal challenges that the intelligence community faces, the community will not begin to reform as it must.  Trying to capitalize on the unpopularity of the legal profession by using the “blame the lawyers” canard in a thinly-veiled effort to divert blame from its own deficiencies is not something that will help the intelligence community or, more importantly, the nation’s security.

This is not about lawyers wanting to prevent intelligence officers from being heard or doing their job; it is about lawyers doing their job in protecting the Constitution and the country.  Do we want to be a country that forfeits laws and moral ethos?

Can the law sometimes be used against us by other countries?  Sure.  Does it sometimes take time to review the often complex legal parameters?  Absolutely.  But to ignore the law – and to castigate the lawyers who try to explain and enforce it – can create a ripple effect that can tear the fabric of our democracy and the values our country cherishes.

Either we are a nation of laws or we are not.  If we are going to be a nation of laws that protect our country and our people, then we need lawyers – along with intelligence specialists – to weigh in on vital decisions regarding national security, privacy, and civil liberties.

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About the Author

is currently a Professor of the Practice of Law and Executive Director, Center on Law, Ethics and National Security, at Duke Law School. He retired from the Air Force in 2010 as a Major General.