[Infowarrior] - JSG on the IC Manipulating the Rules

[Richard Forno]

The Surveillance State’s Legalism Isn’t About Morals, It’s About Manipulating the Rules

By Jennifer Granick
Thursday, November 13, 2014 at 10:00 AM

Margo Schlanger has written a great article forthcoming in the Harvard National Security Journal about intelligence legalism, an ethical framework she sees underlying NSA surveillance. Margo makes the case that NSA and the executive branch haven’t been asking what the right surveillance practices should be, but rather what surveillance practices are allowed to be. She takes the concept of legalism from political theorist Judith Shklar: “the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules.” In the model of legalism that Margo sees the NSA following, any spying that is not legally prohibited is also right and good because ethics is synonymous with following the rules. Her critique of “intelligence legalism” is that the rules are the bare minimum, and merely following the rules doesn’t take civil liberties concerns seriously enough.

My question is whether legalism serves as a moral code for US Intelligence Community (IC) leadership, or only as a smokescreen. I believe the evidence shows that since 9/11,the IC, and specifically the NSA has not followed the rules. Rather, the agency has resorted to legalistic justifications in pursuit of other goals—namely whatever might be useful in countering terrorism. Before 9/11, the agency may have been focused on complying with FISA. But afterthat day, the NSA’s approach was that it “could circumvent federal statutes and the Constitution so long as there was some visceral connection to looking for terrorists.” In other words, since 9/11, the moral center of gravity in the surveillance world has focused on doing whatever is necessary for hunting terrorists, not following the rules. 

Margo also argues that the NSA’s legalism equates to, for better or worse, the empowerment of lawyers. Sign-off by lawyers is, as Margo says, an important part of the process. Lawyer opinions gave telecommunications firms legal immunity for their cooperation with the government in conducting mass surveillance. Lawyers were used to compel compliance from underlings within the intelligence community. They’ve been used cynically for public relations purposes, trading on the public trust in the actions of government lawyers to cloud the public debate over legality. They’ve been used to marginalize the role of Congress in approving surveillance. The decisions of lawyers inside the surveillance community have allowed America’s spies to secretly expand their power as they develop classified capabilities and practices that the public and Congress haven’t yet become aware of, and have not even begun to regulate.

But calling this “empowerment” is misleading. We see lawyers who object to policies that may harm civil liberties bypassed in favor of handpicked counsel who give their bosses the answers they want. Lawyers are ratifying surveillance decisions policy makers have already made.

That’s not empowerment, it’s subservience…..

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http://justsecurity.org/17393/ics-legalism-morals-manipulating-rules/

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