The cost of over-lawyering intelligence

I sure hope that the relevant Congressional committees members are all required to read Harvard Law Professor Jack Goldsmith’s book on how the decisionmaking process relating to terror is being “strangled by law.” Here’s a costly example from today’s NY Post:

October 15, 2007 — WASHINGTON – U.S. intelligence officials got mired for nearly 10 hours seeking approval to use wiretaps against al Qaeda terrorists suspected of kidnapping Queens soldier Alex Jimenez in Iraq earlier this year, The Post has learned.

…Sometime before dawn, heavily armed al Qaeda gunmen quietly cut through the tangles of concertina wire surrounding the outpost of two Humvees and made a massive and coordinated surprise attack.

Four of the soldiers were killed on the spot and three others were taken hostage.

A search to rescue the men was quickly launched. But it soon ground to a halt as lawyers – obeying strict U.S. laws about surveillance – cobbled together the legal grounds for wiretapping the suspected kidnappers.

Starting at 10 a.m. on May 15, according to a timeline provided to Congress by the director of national intelligence, lawyers for the National Security Agency met and determined that special approval from the attorney general would be required first.

For an excruciating nine hours and 38 minutes, searchers in Iraq waited as U.S. lawyers discussed legal issues and hammered out the “probable cause” necessary for the attorney general to grant such “emergency” permission.

Finally, approval was granted and, at 7:38 that night, surveillance began.

“The intelligence community was forced to abandon our soldiers because of the law,” a senior congressional staffer with access to the classified case told The Post.

“How many lawyers does it take to rescue our soldiers?” he asked. “It should be zero.”


2 thoughts on “The cost of over-lawyering intelligence

  1. “Excruciating”. “It should be zero.” FUBAR.
    Wanta bet that soldiers are doing surveillance now without asking permission?

  2. This FISA nonsense is insane. The Congress has decided to legislate, but actually creating law is something else again. During combat, especially when authorized by Congress, when soldier’s lives are at stake, the Commander in Chief gets wide powers to save their lives.

    As others have said: ‘This has become overlawyered. Which is not the same thing as well lawyered.’

    It is well past time for Congress to stop making law where it kills American soldiers far from home.

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