Legal intrusions into foreign intelligence activities

There has been a recent and disturbing trend of domestic courts increasingly intruding into the realm foreign intelligence activities, an area throughout American history which has been the sole operational province of the Executive Branch, funded and overseen by the Legislative. Whether concerning detainee operations, communications intelligence programs, or even assessments of the threat posed by illegal combatants – the dangerous idea that foreign intelligence (as an activity) should be treated by legal regimes in the same manner as information gathering in the law enforcement context.

This is a damningly difficult concept to combat. Intelligence activities should and must always take place within the framework of a rule of law, and subject to the control and oversight of the elected branches of government. Reviewing intelligence activities on a case by case basis within a judicial framework is precisely the wrong approach when attempting to maintain situational awareness at the national level in a complex and dangerous world.

In recent weeks we have been particularly troubled to see a number of items which point towards the intellectual foundations of a potentially radical expansion in the scope of judicial overreach into foreign intelligence activities. The continued political furor over the recent leaks regarding the “Terrorist Surveillance Program” has shown just how damaging such intrusions can be, and how terribly frequent the improper discussion of sensitive programs by those who so callously break their most sacred oaths. When the DNI himself indicates that the political fights and legal wrangling has had operational impact, it is more than time to worry.

Worse yet, we detect a discernable strain of legal thinking which now seeks to impose restrictions not only on the collection of information, but on its use. The idea that a warrant might be required to search against previously accumulated foreign intelligence materials sounds absurd, but recent legal opinions appear to have laid the groundwork for such an argument in future cases. This would also be very nearly absolutely fatal in the context of fusion and collaboration for homeland security intelligence purposes (particularly if critical elements of the intelligence picture are obtained from foreign intelligence activities of DOD and other agencies, as if often the case.)

We have long maintained that the mindsets of the lawyer and the intelligence professional are diametrically opposed. The first seeks to present a structured picture through adversarial argumentation, and by training attacks to exclude evidence from the picture to support a particular viewpoint. The latter struggles to understand puzzles and mysteries, and to assemble a coherent narrative in the face of incomplete, conflicting, and deceptive information in order to support the decision-maker’s choices regarding courses of action. Allowing the lawyers to dictate further the key aspects of the world of intelligence – and allowing intelligence activities to be framed into an “investigative” basis rather than continuing inquiry into matters of standing interest – will be the death of the profession.

In part, we come so near to such a state of affairs due to the lack of formalization of intelligence activity as a profession in its own right. It is too easy for those without a long term stake in the process to formulate “reform”, and in the current hyper-politicized environment, see those measures implemented without regard to their effect within the community. What few efforts we have seen to move towards professionalization have been far too much in the character of rent-seeking, and too little towards establishing an articulable and defensible basis for the actions and requirements which allow for the successful understanding of the difficult accounts and hard targets with which we are faced.

We have but a little time for the intelligence studies academia to step up and meet this challenge, before too much is lost to those who pursue studies of the field from a perspective which is distinctly alien to the history and the effective practice of the art and science of intelligence.