All of these factors combined to create a paralyzing culture of risk-averse legalism in the military and, especially, intelligence establishments before 9/11.
I encourage you to hop directly over to Tigerhawk’s post on Jack Goldsmith’s new book, The Terror Presidency: Law and Judgment Inside the Bush Administration. I agree with the points made there, and just want to note that the author of Tigerhawk knows whereof he speaks regarding the impact of Sarbox on competitiveness. One of Goldsmith’s themes is similar — how over-lawyering is strangling decision-making in the executive branch.
…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:
<snip excerpted paragraphs from The Terror Presidency…>
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.
For other posts on this theme, please see here and also the Glenn and Helen show interview with Dr. Goldsmith. Remember all this when you are reading the NYT reports from some future “Next 9/11 Commission” hearings. The indignant senators will want to know “Why didn’t you do what was so obviously necessary to prevent this attack?”. These are the same legislators who have smothered the executive, indeed the country, in a paralyzing spiderweb of laws. Again from Goldsmith:
…”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.
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