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Under heavy scrutiny, intelligence agency lawyers defend surveillance activities

Under heavy scrutiny, intelligence agency lawyers defend surveillance activities

By John Glynn

When news breaks about secret surveillance activity, the intelligence community usually goes radio silent. But at a recent American Bar Association meeting, the legal brains behind various U.S. national security operations attempted to clear the air about the legality of their agencies’ activities.

At the 23rd Annual Review of the Field of National Security Law in Washington, legal officials from the CIA, Department of Defense, Department of Justice, National Security Agency, Joint Chiefs of Staff and Office of the Director of National Intelligence shared their perspectives and described how the press and public often get it wrong.

Legal officials said every activity disclosed so far has been within the law and subject to several levels of oversight from the executive, legislative and judicial branches of government. “Nothing has come out to indicate that there has been abuse of our intelligence capabilities,” said Robert Litt, general counsel for the Office of the Director of National Intelligence.

As the lawyers tasked with interpreting the law for their directors, they not only have to provide what the law is, but also what policy rules are in effect and what the best options are. For Robert Eatinger, senior deputy general counsel at the CIA, his role is to tell the decision-maker what the law allows as well as the potential consequences of each choice.

“While the lawyer’s ultimate role is to advise on the law, it can’t and doesn’t stop there,” he said. “Because you can do it, doesn’t mean you should do it. That’s what we spend our time defining to the director.”

Eatinger explained to the audience of national security lawyers that there always has to be an authorized intelligence purpose to collect any information from someone, and that process always involves the counsel behind the scenes.

“We simply do not go out and just collect on some French citizen’s activities because he’s French,” Eatinger said. “There has to be an intelligence mission that’s been given to us,” such as finding evidence that the French citizen is talking to terrorists.

Brig. Gen. Richard C. Gross, legal counsel to the chairman of the Joint Chiefs of Staff, referred to his responsibilities as “triage.” He mentioned that his legal team reads Lawfare blog, law reviews and law journals to put the legalese into language appropriate to give to the chairman. “You would be hard-pressed to find a field of practice besides national security law where the stakes are so high and the time is often so compressed to get to the right answer,” Gross said.

The legal officials were careful not to mention the name Edward Snowden, the private contractor who leaked classified information to the British newspaper, The Guardian. But they did discuss why it is important not to allow individuals to decide what is relevant to disclose to the world.

For Rajesh De, general counsel of the NSA, the intelligence community doesn’t have a problem with greater transparency and public dialogue, but at the same time, “putting [Snowden’s] judgment above that of all democratic institutions of government is wrong.” De called Snowden’s actions the “unlawful disclosure of otherwise lawful intelligence agencies” and said such actions harm the ability to have an informed and thoughtful public discourse on the subject of surveillance.

Brad Wiegmann, deputy assistant attorney general of the Justice Department’s National Security Division, disputed the notion that Snowden is a whistle-blower, the term for a government worker who discloses illegal activity. Wiegmann said Snowden disclosed activities that were not illegal, though they were secret. “You can’t have a system where everyone gets to decide for themselves about whether or not something should be disclosed,” he said.

The fourth estate was another big element in the conversation on the developments in national security law. Eatinger’s legal evaluation includes what he calls “The Washington Post test,” which reminds him and his director to think about whether the action would look proper to the American people if it were leaked to the media.

Litt mentioned how media reports about surveillance activities “are often based on documents that are exceptionally complicated, dense and jargonized. To really understand it requires a level of technical knowledge that most people, including me and many of the reporters that are writing about this topic, do not have.”

He said that even when reporters come to him with misinformation, he can’t comment or correct them because it would compromise confidential sources and methods. “The documents often only present part of the story. They are not written for the purpose of educating the public,” Litt added.

Litt and Wiegmann also said these press leaks harm their national security efforts. Wiegmann said that when targets of surveillance know how they are being monitored, they will adjust their communication to hamper further detection. 

“When we disclose what our intelligence agencies do, we make it harder for them to do it. What you read in The Washington Post, al-Qaida also reads,” Litt said.

Litt also took issue with the idea that the leaders of the executive and legislative branches were left in the dark about the intelligence-gathering methods. He said that the leaders know what the intelligence priorities and programs are, and that is what is most important.

“The president and chairman of the Senate Intelligence Committee both knew that we were seeking information about leadership intentions. They both saw reporting indicating what we were getting, if not indicating the source,” Litt said. “They had adequate oversight on this, even if they didn’t know every one of the tens of thousands of particular selectors that we were using in our surveillance.”

The officials defended their organizations’ actions, yet also saw areas for improvement in the field of intelligence. “The intelligence community has to pay more attention to how difficult it is to keep secrets today,” Litt said. “In determining what activities we undertake, we need to give more consideration to the impact of what additional leaks would be.”

President Barack Obama has called for a comprehensive review of all intelligence programs in the wake of recent revelations about intelligence gathering on foreign leaders.

But to the lawyers employed by intelligence operations working on national security issues, the nature of the business is that top secret activities are confidential and protected for a reason. As Litt warned, “Virtually everything we do, if it comes out, is going to be embarrassing.”

The 23rd Annual Review of the Field of National Security Law was co-sponsored by the ABA Standing Committee on Law and National Security, the Center for National Security Law at the University of Virginia School of Law, the Center on Law, Ethics and National Security at the Duke University School of Law and the Center on National Security and the Law at Georgetown Law.  To follow some of the conversation from the event on Twitter, use the hashtag #ABANatSec.

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