Sunday, March 09, 2008
Retroactive discipline and the influence of lawyers on national security
This afternoon I read the first half of Jack Goldsmith's excellent book, The Terror Presidency: Law and Judgment Inside the Bush Administration
My opinions out of the way, I submit for your discussion a long (but fair-use!) excerpt regarding "retroactive discipline," the second-guessing by lawyers of executive branch actions thought to be lawful ex ante but arguably unlawful ex post:
My confrontation with [Counsel to the Vice President] David Addington that morning in the White House Counsel's office was a small episode in one of the underappreciated stories in the war on terrorism: the daily clash inside the Bush administration between fear of another attack, which drives officials into doing whatever they can to prevent it, and the countervailing fear of violating the law, which checks their urge toward prevention. After 9/11, the Bush administration feared for the nation's safety as much as Franklin Roosevelt had. But Roosevelt's political conception of legal constraints had largely vanished, and by 2001 had been replaced by a fiercely legalistic conception of unprecedented wartime constraints on the presidency. When President Bush and his senior advisors began to order the aggressive actions that they believed the post-9/11 situation demanded -- covert military action, surveillance, detention, interrogation, military trials, and the like -- they encountered these constraints for the first time in a major conflict.
The main problem was not that senior officials faced potential legal jeopardy. These officials worried intensely about violating the law and later being hauled before a grand jury or court. But they were usually willing to take risks to fulfill the enormous responsiblities that they had assumed to protect the country. And many of them, I think, implicitly believed they would likely be pardoned if they mistakenly crossed the line in executing the President's commands.
The main problem was the effect that the legalization of warfare and intelligence had on lower-level officials in the Defense Department, the CIA, and the National Security Agency. The White House couldn't execute its plans to check al Qaeda without the cooperation of the military and intelligence bureaucracy. But these bureaucracies -- especially in the intelligence community -- had in the 1980s and 1990s become institutionally disinclined to take risks. The Church and Pike investigations of the 1970s and the Iran-Contra scandal in the 1980s taught the intelligence community to worry about what a 1996 Council on Foreign Relations study decried as "retroactive discipline" -- the idea that no matter how much political and legal support and intelligence operative gets before engaging in aggressive actions, he will be punished after the fact by a different set of rules created in a different political environment. "[I]t would simplify matters if at the time we were assigned to a covert action program, the letter of reprimand should accompany the orders, as receipt of one seemed inevitable," Melissa Boyle Mahle, a CIA Middle East field operative would tell her colleagues, half-jokingly.
This mounting confusion was reinforced by the swarm of lawyers that rose up in the military and the intelligence establishment to interpret multiplying laws and provide cover for those asked to act close to the legal line. In the 1970s the CIA had only a handful of lawyers. But as legal restrictions on CIA activities grew, and despite huge personnel cuts in the 1990s, the number of CIA lawyers rose and rose, and today stands at well over one hundred. The number of lawyers in the Defense Department grew even more steeply during this period, and today stands at over ten thousand, not including reservists. As lawyers grew in number, they grew in influence. Commanding officers and intelligence operatives seeking to avoid "retroactive discipline" increasingly sought lawyers' permission before acting. If the lawyer said "no," the official had a perfect excuse for not acting. If the lawyer said "yes," the official was effectively immunized from legal liability, including jail. Seeking a lawyer's input thus became a way to avoid both blame and jail.
Lawyers are by nature and training a cautious bunch, and as their power grew, their caution spread. "I know from my work on this Committee for the past 10 years that lawyers at CIA sometimes have displayed a risk aversion in the advice they give their clients," Senator Bob Graham, the distinguished Democrat on the Senate Intelligence Committee, complained one year after 9/11, during the confirmation hearings of Scott Muller for the General Counsel of the CIA. Senator Graham and many others on the Senate and House intelligence committees in both parties were furious about what Graham called "cautious lawyering" at the CIA. "Unfortunately, we are not living in times in which lawyers can say no to an operation just to play it safe," he told Muller. "We need excellent, aggressive lawyers who give sound, accurate legal advice, not lawyers who say no to an otherwise legal operation just because it is easier to put on the brakes." Graham concluded by asking Muller to give "cutting-edge legal advice that lets the operators do their jobs quickly and aggressively within the confines of law and regulation."
Senator Graham's disquisition reveals the national security lawyer's central dilemma. He is criticized for being too cautious, for putting on the brakes, for playing it safe in a dangerous world that cannot afford such risk aversion. But he is in the same breath cautioned to give "sound, accurate" legal advice within the "confines" of the law. It is often impossible to do both. The laws that govern the intelligence agencies are not often written in black and white, but rather in complex shades of gray. When intelligence clients ask lawyers whether aggressive counterterrorism actions are legal, clear answers don't always leap from the pages of the U.S. Code. Often the best a lawyer can do is to lay out degrees of legal risk, and to advise that the further the client pushes into the dark gray areas of legal prohibitions, the more legal risk he assumes. Even when the law is clear, lawyers sometimes offer muddy interpretations to serve a separate agenda. Some lawyers will use legal review as an opportunity to push their beliefs about the appropriateness of the proposed action, or to serve the institutional interests of their bureaucracy. Others will try to cover their behinds in case anything goes wrong by giving hedged answers when a clearer "yes" would have been more appropriate. Whatever its source, wishy-washy legal advice understandably infuriates the men and women who are asked to take aggressive action and want to know whether what they are about to do is legal or not, period. When they hear a government lawyer talking about shades of gray and degrees of risk, they understandably hesitate, especially when criminal laws are in play.
Lawyers weren't the only contributors to risk aversion. Inspectors general too sometimes engaged in "retroactive discipline" of lawyers themselves, making the lawyers even more cautious than usual. Each agency's "IG," as the office is called, reviews agency practices for waste, fraud, and abuse. IGs can also do criminal investigations and make criminal referrals to the Justice Department. Many IGs perform valuable audits that reveal bad practices and recommend improvements. The Department of Justice IG, for example, did outstanding work during my time there. I had a different experience, however, with the CIA Inspector General's office. In one investigation involving legal issues I knew a lot about, CIA IG investigators who weren't lawyers second-guessed complex legal interpretations that lawyers in the CIA General Counsel's Office had made under difficult circumstances. The investigators came across to me as aggressive prosecutors out to get their prey rather than neutral and helpful auditors trying to improve the agency's work. When I asked them whether they worried that this attitude would have a harmful, chilling effect on CIA lawyers, and thus on the agency itself, they said that wasn't their concern. I can only imagine the devastating impact this attitude had on the agency lawyers whom Senator Graham and others pressured daily not to engage in "cautious lawyering."
All of these factors combined to create a paralyzing culture of risk-averse legalism in the military and, especially, intelligence establishments before 9/11. In response to al Qaeda's August 1998 bombing of American embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya, President Clinton issued several secret authorizations for the CIA to work with Afghan tribal elements to capture and if necessary kill Osama Bin Laden. The CIA had Bin Laden in its sights. But everybody in the CIA knew about Executive Order 12333, the 1970s-era ban on assassinations. Everyone also knew the fate of Robert Baer, a CIA case officer who, in the midst of organizing opposition to Saddam Hussein in 1995, was called home to Langley to face a career-ending FBI investigation for conspiring to murder Hussein. This is one reason why George Tenet and other senior CIA managers insisted that the White House be unambiguously clear about what the CIA was authorized to do to Bin Laden. "CIA managers had been conditioned by history to read their written [authorizations] literally," notes Steve Coll in Ghost Wars, the most comprehensive history of CIA activity in Afghanistan before the 9/11 attacks. "Where the words were not clear, they recommended caution to their officers in the field."
The clear authorization that the CIA sought never came. Clinton's OLC agreed that the assassination ban did not apply to a military target, like Osama Bin Ladam, who posed an imminent threat to the United States. So far so good. But then the ambiguities appeared. White House and Justice Department lawyers opposed an unrestricted lethal operation against Bin Laden, and would authorize his killing only if it were necessary for self-defense in the course of legitimately arresting him. This distinction was bad enough from the CIA's perspective, but the operation was furthered muddied by the lawyers' refusal to be clear about what constituted self-defense, or about how imminent a threat Bin Laden must post before the CIA operation could commence. "Wiggle room" in the authorization led the CIA to worry, in Coll's account, "that if an operation in Afghanistan went bad, they would be accused of having acted outside the memo's scope." Fear of retroactive discipline, induced by cautious legal authorizations, led the CIA to forego the covert operation.
In this and many other episodes prior to 9/11, intelligence officers spooked by cautious lawyers failed to take actions that might have prevented the 9/11 attacks. The CIA was, in the words of the 9/11 Commission Report, "institutionally averse to risk," and law and lawyers were a big part of the problem. It didn't help that CIA leaders encouraged their officers to buy professional liability insurance for legal expenses to be incurred in the expected criminal and related investigations. "I think it's deeply disturbing that we have a system of government that asks young men and women to go overseas and take enormous risks for them and then say, 'Oh, by the way, you might want to get insurance to provide counsel because we might subsequently decide to prosecute you tomorrow for what we're asking you to do today,'" says Jeffrey Smith, a former CIA General Counsel. Robert Baer, who was in a position to know, says the signal the insurance sends is clear. "Don't take risky assignments. Don't get involved in any contravention or possible contravention of American law. Just don't do it. It's not worth it. You can't afford the lawyers. The organization's not going to back you up. Take a nice safe assignment. Take no risks."
Read the whole thing
.Before you jump in to what I know will be a robust comment thread, consider two supplemental thoughts. First, the fight over whether the telecom corporations should get immunity from civil lawsuits for having helped the NSA monitor communications involving potential jihadis is really about the application of "retroactive discipline," albeit by tort lawyers rather than prosecutors. Second, Goldsmith's interpretation of the bureaucratic dynamic will resonate forcefully with anybody who has worked as a public company director, CEO or CFO in the last seven years. The increasing criminalization of business decisions is having a huge influence on such people. Anybody in such a job without a bodyguard of lawyers is a fool, and that is having precisely the same influence on the American businessman's proclivity for risk as Goldsmith says prevails in the various national security agencies.
13 Comments:
By 
, at
Sun Mar 09, 09:35:00 PM:
This will cause this country to
pay a high price in the loss of
life. I guess that's just about
the only thing that will finally
wake up the survivors.
And those who should be held
accountable will never face
justice.
Maggie
By , at
Sun Mar 09, 09:41:00 PM:
With all due respect to the legal profession - zero in 9 of any 10 cases - the injection of fine-point legalism into the prosecution of a global war against a merciless, primitive, bloodthirsty, nihilistic opponent demonstrates such profound stupidity that one must fear for civilization. The other side asks among itself "Where can we snatch another mentally deficient person to strap a remote controlled bomb to?" while we ask "Did legal clear this?".
I feel about lawyers the way I once heard Naomi Judd describe her feelings about men: "Can't live with 'em, but you can't shoot 'em." Too bad for us.
By 
SR, at
Sun Mar 09, 10:16:00 PM:
TH: One of your most revealing and alarming posts.
Not that we in the non-legal community didn't suspect the hamstringing by lawyers of most aspects of American life, but we couldn't have imagined the pervasive shackling going on in the government tasked with protecting us. This book is probably way to dry for most of us to plow through, but thanks for the money excerpt. The obvious question is: "What if anything can be done about this?" There is one non-sequitr in your post which is the notion that left wingers give a fig about the security of the nation. Political power is their only driver. Since they can never achieve it in America by democratic means, they have turned to the Lilliputian approach of incapacitating legal ensnarement. I can only wait for CC's snarky retort.
By Christopher Chambers, at
Sun Mar 09, 10:26:00 PM:
Fair use? Lord, why not just reprint the whole book. That's a hearty chunk.
Why don't ypu read something about people who live and struggle and hurt (oops...that's right, there IS no struggle or hurt here) in your own back yard? A little empathy might go a long way in purging the douchebaggish tendencies from this blog...and give you another perspective as you read your usual stuff.
Be patient. For an advanced seminar we have our students here at Exorcist University working on a piece re-evaluating the Daniel Pearl murder (the "Brangelina" movie was bullcrap) sources and evidence. I tink you'll find it more interesting to read than this stuff.
You might also vet Goldsmith's book with my Princeton classmate John Bellinger, Esq. '82, Condi Rice's legal eagle and who's been privy to all kinds of nasty stuff at the State Department from the get-go...even for a brief time when Reno was AG.
By Assistant Village Idiot, at
Sun Mar 09, 11:41:00 PM:
Chris wandering off to another topic again - did he blow too much dope as an undergrad or something?
The problem is enormous, and more deaths won't prevent it. After any major incident, there will be a brief period in which national sentiment would allow anything - hangin's too good for 'em - based on feelings of revenge. This evaporates quickly, but progressives will continue to assume indefinitely that because revenge was briefly their motive, it remains the primary motive of those who seek to engage terrorists. This is called projection.
In that new political climate, every action will be assumed to stem from the basest motives, and political opponents will look around for some way to stop what they imagine to be out-of-control agencies directed by leaders bent upon deceiving us. Their best tool will be the law, which can be used both to actually punish - sometimes justly - but more importantly, can be used to inflict political damage.
I don't see how this train turns around. It hasn't turned around in psychiatric care in my 30 year career, nor in health care in general. There is more political hay to be made fighting George Bush in Washington than fighting terrorists elsewhere. How do people imagine that ceasing?
By , at
Mon Mar 10, 01:26:00 AM:
I do think eventually we will get rid of the lawyers and lawyering and all that stems from it: a view that over-lawyering has no real downsides in a world where we are like Parker Lewis -- we can't lose.
Well, we WILL Lose. And lose big: NYC, DC, perhaps other cities. Iran is racing towards nukes, other nations too because nuclear proliferation absent US political will to stop it is simply a fact of life. The basic technology is 63 years old, and available to any nation that wants to spend the money. PAKISTAN and NORTH KOREA have them for gosh sakes. Definitions of failed states.
So, we will not lose 3,000 to planes crashing into buildings. Nor 50,000 as Ramzi Yusef planned in 1993 when he blew up support columns for the WTC, hoping to topple one tower onto another. No, we'll lose 2-3 cities, 3-6 million dead, more injured, tremendous loss of life. Loss of wealth.
And we will simply go about killing most of the Muslim world. For survival to make sure it never happens again.
In 1939 the RAF wanted to bomb German factories in the Black Forest and Cabinet forbade it because it was "private property." By 1942 the RAF was conducting night firebombings over German cities. I assume the same stupidity will happen here.
Reasonable, measured action NOW to prevent catastrophe won't be taken, for CYA reasons amidst the assumption that we are not in a war for survival. Some nuclear government, Pakistan or Iran or someone else, will give Jihadis nukes to play with and go bother the Americans instead of them, and we'll lose millions. And be forced to kill hundreds of millions to make sure it never happens again.
I'll point there is another player here. It's Jihad. It's not going away with Bush, and will go nuclear sooner or later.
By Gary Rosen, at
Mon Mar 10, 03:13:00 AM:
Chrissy, if you really want to put a dent in the "douchebaggish" tendencies of this blog, then quit posting.
By Gary Rosen, at
Mon Mar 10, 03:19:00 AM:
A very thought-provoking post, TH. I am no big fan of lawyers but I believe here they are as much symptom as cause. The "root cause" (if you'll forgive the expression) is the belief among many, mainly on the left, that our deadly enemies abroad are entitled to the same rights US citizens have under the constitution. Pretty soon we will be sending troops out with copies of Miranda to read aloud before firing their weapons.
By , at
Mon Mar 10, 04:22:00 AM:
Anon is sadly completely right. The world will get an Obama Presidency and the inevitable will occur. A wave of (Nuclear) destruction will engulf one or more Western cities. Bushes "your either with us or not" statement will pale to insignificance - well at least he gave the world a chance. I recall at the time that most seemed to, more or less, agree with what he said - post 9/11. However, the Westerns publics lack of a perceived threat, no significant attacks (Irony anyone?) and a bizarre lack of understanding of WHO (Radical Islam - morons!) is actually threatening our existence leads us to this terrifying scenario.
I feel VERY pessimistic.
By Christopher Chambers, at
Mon Mar 10, 09:33:00 AM:
Gary, dont call me "Chrissy," then again your often I can't tell in the dark whether it's your mom or your wife who's whispering it to me as I give it "brotha" style. Same husky voice.
I'm wondering what TH's colleagues and employees (or certain African American acquaintences-stockholders and directors) wouldsay and think if they indeed knew the extent of the douchebag infestation he's ushered in? I'm actually helping his cause with the general public, out side of your little sick world.
But take heart, once Barack is president, I don't think he'll use all of the domestic spying crap Bush himself ushered in against clowns like you. I would, but that would make your mom unhappy...and I do look forward to my Friday nights.
If all that's douchebaggish, good. Now you know how regular people feel when they must endure you and you views. Perhaps now you will learn some empathy, some need to find common ground. I hoping, but knowing your ilk as i do, I doubt it, but it'd fun telling it to your face regardless
By , at
Mon Mar 10, 09:45:00 AM:
Chris,
I am again compelled to correct you on your improper use of the word "douchebag" and its derivatives. Douchebags are of the fairer, more gentle sex. Males are properly referred to as scumbags.
I bring this message to this blog as a public service.
By , at
Mon Mar 10, 08:29:00 PM:
"Perhaps now you will learn some empathy"
Bwahahahaha!
You're like mana from heaven for an aspiring psychologist. You drip with arrogance while claiming to be in touch with the 'general public,' and resort to the most juvenile of insults (on the Internet, no less; why not type in 3l!t3 5p3^k?) while talking about schooling someone in empathy.
And you honestly believe that people take you seriously enough to consider your words. Priceless.
Every time you seem to start to demonstrate judgment and civil behavior, you turn around and blow it all away.
By , at
Tue Mar 11, 03:11:00 PM:
I posted my view of this problem at my blog:
Don't blame the lawyers, blame the policies, and the policy-makers.
