Overt Action readers should check out Margo Schlanger’s essay, “The Problem With Legalism in the Surveillance State” over at Just Security. Schlanger argues that a legalistic approach to decision-making, which prioritizes rules rather than sound policy, has come to dominate the Intelligence Community. This results in too much consideration for what the IC can do and not enough consideration for what it should do. “[T]he effect of intelligence legalism within the IC is to allocate much decision-making to lawyers instead of policymakers and other practitioners.”
Schlanger’s chief concern is that legalism gives short shrift to civil liberties. I’m somewhat sympathetic to that argument. But it is important to recognize that legalism (adopting Schlanger’s terminology) also gives short shrift to security concerns. This is a subject that I wrote on in more detail here and here and that many civil liberties advocates might find counterintuitive.
By focusing on what we can do rather than what we should do, this drives maximalist interpretations of law that result in expansive collection that is neither optimal from a security or civil liberties standpoint. Surveillance programs disclosed since June 2013 have generally comported with the law. Some of those programs are incredibly important to national security while others appear to be myopic or ineffective. The legalistic approach is partly responsible for allowing those ineffective programs to survive for so long without coming under closer scrutiny from a policy perspective.