Of lawyers and hammer fixation

We have condemned the too frequent intrusion of the lawyers into the realm of foreign intelligence on many previous occasions. From a perspective of policy and of practicality, it rarely results in good outcomes – especially when it comes hand in hand with the kind of toxic politicization that has so corrupted the contemporary environment. We can think of no better example than the continuing travesty which has been the leak plagued and talking point distorted scandal that is the attempt to apply unprecedented restrictions on foreign intelligence collection, brought about by a single un-reviewed FISA court decision and the political football that has resulted over corrective legislation. We need not revisit the matter here, as other commentators have spilled countless pixels on the topic, and we think the exceptionally candid statements by the community’s most senior leadership should have laid the matter to rest. That the debate continues is bitter testament to the folly of politicization too common in today’s national security decision-making abetted by ill starred over-lawyering.

It is against this backdrop we find yet another attempt to introduce the unelected judicial branch into matters which have long been properly held to be strictly questions for the elected officials of the executive and legislative branches who are themselves accountable to voters in questions of policy. In this case, the intrusion comes in the form of a paper which presents a "modest" proposal to hold the war-making powers of the elected branches hostage to an adversarial court process, in which the case to be presented will be composed from intelligence take. We initially would have thought this a jest in very poor taste indeed, but we unfortunately see it was seriously argued.

Presumably such intelligence would be inevitably demanded in its most raw form. This is a sure prescription for even more damaging leaks than have already cost significant investments in blood and treasure through the loss of the unique capabilities that such investments had purchased. It is also a sure prescription for intelligence failure, not merely due to the loss of those capabilities to leaks, but also due to failures of analysis. Prior to World War II, a good many legal minds attempted to act as their own analysts – and failed in ways which demonstrated just about every form of cognitive bias and logical fallacy that has ever been documented in analytic tradecraft. The parsing of law and the insight required of intelligence analysis are entirely different creatures, and do not mix well – especially under the conditions of great uncertainty and implacable time constraints which are found in international crisis situations.

Given the dysfunction which has so characterized what is among the most vital and timely of national needs in this Long War, to great and unfortunately continuing loss. Not every problem in the arena of national security and international relations is amenable to the lawyer’s hammer (or more appropriately, the judge’s gavel.) There are other instruments of national power, and making these subservient to a courtroom process is a certain path towards rendering them entirely impotent in a complex, dynamic and continually evolving threat environment.



h/t Volokh Conspiracy