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

Rent seeking and digital media exploitation

We hear news of one of the more disturbing aspects of legal intrusion into the intelligence field – the tendency of lawmakers and regulators to craft protectionist legislation – enabling and encouraging rent seeking behaviors that would never survive in a more open marketplace.

This time around it is an area which at first blush might seem tangential to the profession of intelligence - but it is more closely associated with other issues in the field than we would like. South Carolina may force those private parties involved in digital forensics to hold a private investigation license – that hoary old document so beloved of fiction authors and scandal page writers.

The PI business has clearly been losing a lot of ground over the past few decades as business has become ever more global in nature – and not that it ever had much ground to begin with, in the more rarified professional atmospheres of major multinationals. The few top tier exceptions in the field have undergone some dramatic shifts – so much so that reporting on the industry’s turmoil became a staple of the Indigo Publication’s Intelligence Online newsletter. Major players from consulting firms and more specialized shops have emerged to carve away what might have been business opportunities, especially since most executives (and more critically, the lawyers who advise them) disdain the “hard-boiled” image that the term PI evokes. Even if in the modern business of investigations such an image is only a stereotype, it has a strong impact on business realities.

Digital forensics is a pretty wide field, even despite its relative youth. It encompasses activities as disparate as internal systems monitoring, to compliance auditing, to the full range of criminal search and seizure. What it means in a networked world is still very much being explored – particularly given the challenges posed by rapidly evolving hostile technology innovations. In its more advanced networked forms, it often begins to resemble more closely activities in the signals intelligence domain. While this is understandable from the perspective of intelligence studies theory, given that the native competencies of intelligence in the cyber domain have yet to be recognized, it is far to early to allow regulatory frameworks to disrupt the development of the discipline – especially a framework which imposes mechanisms better suited to the Industrial age of rail than the modern age of networks.

We oppose this line of thinking not only for the immediate harm it causes, but for the slippery slope it creates. With each new regulatory overreach, additional activities within the intelligence field become new marginal examples that could be brought under one’s favoured framework. From digital media exploitation it is not far to also seize upon the regulation of document exploitation, and from DOCEX it is easy to bring other aspects of OSINT under the sway of those seeking to profit from entrenched positions. How long then before simple searches within a database, or simple overt elicitation contacts, will require a licensing regime – and one ruled by a clique of established players with only the "right" kind of political connections?

This is among the reasons why we have also opposed the creation of arbitrary standards bodies seeking to define professionalism within the intelligence field – especially those composed of academics who cannot even properly conceptualize many of the key aspects of the profession as it is actually practiced, let alone standardize external measures by which practitioners might be judged. We hold no objection to bodies seeking to advance professionalization through a community of interest, a strong literature, and leadership by example. We also see no issue in individual standards being put into place in specific circumstances – such as the conditions under which a court will recognize sufficient expertise for testimony, or how a government agency will certify knowledge and experience ample for the performance of a contract it is to award, or how employees will be evaluated for promotion within a given shop. But these are far different things than the regulatory creature now rearing its ugly head.

We hope that some degree of sanity will return to these discussions, particularly should the lobbyist guns of the major consulting firm players be warmed up to play against the bush league minors that appear to be driving this process. While the South Carolina case is but one state, the precedent could create more widespread attempts at similar rent-seeking behaviors, both geographically and down that slippery slope of further overreach.

h/t Slashdot