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"I can't go to the bathroom at CIA without a lawyer," Michael Scheuer, the agency's former chief Osama bin Laden hunter testified in April before a congressional committee. "There's no operation at the CIA that is conducted without approval of lawyers. It's the bane of our existence, and it's a detriment to the defense of America, but nonetheless that's the fact."

Lawyers, you see, are a kind of fifth column in the war on terrorism. If they're not filing habeas corpus actions on behalf of Guantánamo detainees, they're inside of government inhibiting the sort of covert actions that might keep us safe. The prominent role they play there is preventing America from taking off the gloves against the bad guys.

Except, that is, when it's the lawyers themselves who are unlacing the gloves.

That's the role described by Philip Zelikow--a former deputy for Secretary of State Condoleezza Rice and the lead staffer for the 9/11 Commission. In a speech a few days after Scheuer's testimony, Zelikow took a rather different look at the bar's role in the war. Like Scheuer, he lamented the role lawyers have come to play in setting counterterrorism policy--but for diametrically opposite reasons.

In Zelikow's view, the debate over counterterrorism policy "has been dominated by lawyers arguing with other lawyers. Their debate is about what the law...allows and does not allow." The debate, in other words, became not about what policy should be, but about what the law already is. "Able bureaucratic players in the Bush administration were able to use legal opinions to provide formal policy cover for Agency operations and deal with internal dissent and unease ('the Attorney General has said it is legal')." What's more, "The legal defense then became the public face of the policies." By letting lawyers set the terms of the discussion, Zelikow argues, the administration avoided asking the tough moral questions and the important cost-benefit questions about the value of rough tactics. Put simply, "the policy guidelines devolved into legal guidelines, which were to do everything you can, so long as it is not punishable as a crime under American law."

So who's right? Is the prominence of lawyers in the war on terrorism a dangerous constraint on action or a dangerous enabler of brutalities? The paradoxical answer is that both men have a real point.

 

Without question, lawyers have come to play a huge role in counterterrorism policy and operations. This is, as both Zelikow and Scheuer in different ways point out, odd. There is, after all, nothing about legal training that qualifies a person to know how to capture or interrogate a terrorist, much less how to conduct military operations or covert actions. Law schools don't teach anything useful about Islamist extremism--or about foreign policy or diplomacy. As a group, in other words, lawyers are far from obvious leaders in this arena. Yet no major decision in the war on terrorism goes unlawyered.

The reason is that law itself, particularly criminal law, has expanded a great deal over the past several decades. No longer are warfare and international conflict, even overseas, matters of pure policy, because American law no longer ends at its borders. Interrogate someone too roughly, and you've committed a domestic crime. Violate the Geneva Conventions and you may have committed an international crime. Exceed surveillance laws domestically, and you've committed a crime. These expansions of the criminal law have all taken place for good reasons, but not without cost--because they force decisions that used to be policy questions into a legal box. And that gives executive branch lawyers a veto if not over trips to the bathroom, certainly over anything that might prove dicey. From an operational point of view, Scheuer's vantage point, that constraint presents a constant source of delay and inhibition.

In the policy context, however, particularly in the period of crisis that followed September 11, a different dynamic also came into play: an intense pressure to inject flexibility into the maze of legal restrictions and criminal prohibitions intended to regulate the spook world. Ironically, this project also became a legal task. Instead of playing the role of naysayers, the administration's lawyers beat the law in several areas until it confessed--confessed that it contained fewer and weaker restrictions than anyone had previously imagined. As Zelikow trenchantly observes, the debate that process generated was all about legality, not about moral correctness or the efficacy of policies that lawyers are ill-positioned to evaluate.

Scheuer's and Zelikow's problems, in reality, are flip sides of the same coin. The coin is our ambivalence as a society about the dirty work involved in protecting this country. We want an intelligence community that operates under rules. We don't, however, want the rules to leave intelligence operatives incapable of getting done the sometimes ugly things security requires. The tension leaves lawyers, particularly in times of relative security, in the posture of restraining a frustrated Scheuer, who doesn't care a fig about legal rules but just wants to get the enemy. It also, as Zelikow observes, indelibly defines the debate when times get tough as a discussion of what Scheuer and those like him can do at the "frontiers of the law," not what they should do in the moral universe America likes to occupy.

Zelikow's problem seems particularly stubborn, because of a bureaucratic imperative that Zelikow himself must understand particularly well. Nobody in the trenches of trying to prevent the next attack wants to be the official named by the next Philip Zelikow in the next 9/11 Commission report as the one who, because of moral squeamishness, didn't do everything he could legally do to avert catastrophe. The entire incentive structure of the bureaucracy pushes toward walking right up to the limits of the law, wherever those limits lie. That, in turn, puts a huge premium on where the legal lines really are--which, in practice, means putting a lot of weight on the manner in which lawyers choose to draw them. When the stakes involve monumental disasters, the "should" pushes inexorably towards the "can."

 

I can think of only one way to ameliorate this general problem: clearer law. The power of lawyers in the policy discussion is at its greatest in the face of legal indeterminacy. Where carefully-crafted rules clearly reflect a policy discussion that has already considered the moral and cost-benefit factors associated with aggressive action, less will hang on the interpretive choices of executive branch lawyers (who will, in any event, have less room for interpretive acrobatics). Because the policy judgments of Congress by the nature of the institution defines the terms of the law, Congress is uniquely positioned to push the "can" back toward the "should." This will not eliminate the power of lawyers in the debate; far from it. All statutes require interpretation, and the executive branch in any event claims certain inherent authorities irrespective of what Congress might say, inherent authorities whose scope ultimately presents legal questions that are, of course, subject to the interpretation of lawyers. But clarifying statute law would tend to limit lawyers' internal bureaucratic clout. The clearer the legal structure of the conflict becomes, the freer the Zelikows will be to argue policy. And the freer the Scheuers will be to go to the bathroom without asking a lawyer for a hall pass.

By Benjamin Wittes

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