A Response to General Dunlap

First a caveat—I have worked with many honorable national security law experts who do exceptional scholarship and whose perspective I find extremely valuable, just as I have worked with many honorable intelligence professionals. The perspective of these intelligence professionals is largely absent from public discourse. It is my contention that this results in a public debate about intelligence issues that is too focused on concerns for legality and too divorced from concerns about efficacy.

My original article hinged on what I consider to be a very stark finding; of those individuals who have testified before Congress on surveillance issues since June 2013, twenty-four witnesses have been outside legal experts compared to only two outside witness I would consider bonafide national security experts. This suggests something is amiss in the surveillance debate. In response, General Dunlap states that, “Neither Mr. Erwin nor anyone else should be especially surprised that lawmakers concerned about the adequacy of the law would want to hear from lawyers.”  I am not surprised, but I am troubled by what this says about the respective roles of legal and intelligence experts.

Upon reading this rebuttal, it occurred to me that the term lawmaker has probably never appeared in anything I have written. I have always thought of myself as serving policymakers. This might seem like a minor point about terminology, but it demonstrates that General Dunlap and I have different backgrounds that frame our understanding of what is important in intelligence debates. In my view, policymakers in Congress may effectuate change through the law, but the changes they pursue should be based on a much broader set of factors than the law. General Dunlap’s background understandably results in a focus on lawmakers and on the adequacy of the law, just as my background results in a focus on policymakers and on the efficacy of intelligence activities.

As I noted in my previous article, the real problem here is the almost complete absence of those with an intelligence background contributing to intelligence debates.

General Dunlap states, “the key issues in the post-Snowden era mostly relate to privacy and civil liberties, subjects about which lawyers – not intelligence specialists – have real expertise and experience.” This is the crux of our disagreement. To me, the key issue is actually much more fundamental. It is about how we balance legal, civil liberties, and security concerns and perhaps also about whether the proper mechanisms exist to ensure that balancing takes place. The legal and civil liberties issues should not be understood in a vacuum. Without examining the security side of that equation, a proper balancing can never take place. And without creating a greater role for intelligence specialists in pubic debate, a full examination of those security concerns will not occur.

General Dunlap also argues that legal professionals are the right folks to examine the security side of this equation. In my experience, the legal professionals I have worked with have what I would characterize, in the language of the CIA’s Directorate of Intelligence, as exceptional analytic tradecraft. This means an acute attention to detail and sourcing and a keen eye for unfounded assumptions and faulty argumentation. These are the characteristics of the best intelligence analysts. But this simply is not sufficient to establish national security expertise. The argument is akin to suggesting that, given my involvement in the surveillance debate over the last year and despite my lack of legal training, my judgment about the legal concept of relevancy as it relates to bulk phone records should hold weight relative to the judgment of seasoned legal scholars. That would be presumptuous on my part and I would defer to those with the appropriate background on that subject.

Finally, General Dunlap seems to confuse my argument that we should focus more on intelligence efficacy with a suggestion that our current intelligence collection programs are efficacious and appropriate. Indeed, it is an indication of the disconnect that occurs when intelligence specialist are absent from public debate that responses to my article have assumed I am in favor of ubiquitous surveillance and law-breaking. Those familiar with my work will know that is not the case.

Readers of Just Security may recall that I have criticized NSA’s phone records collection program on the grounds that it has marginal counterterrorism value. Given its limited value, it seems that the proper balancing of the legal, civil liberties, and security concerns did not take place for this program. Further, one of my primary concerns with understanding intelligence only through a legal lens is that this will allow legal, ineffective programs to survive. That will damage national security because, especially in a new age of austerity when the intelligence budget is no longer increasing steadily year by year, diverting resources away from ineffective intelligence programs and towards 21st century challenges will become all the more critical.

I would agree with some of General Dunlap’s criticisms of the intelligence community, including his suggestion that the community has in some sense overreached. It is certainly the case that intelligence officials now have a credibility problem. And I would wholeheartedly agree with the view that the “efficacy” of intelligence activity should involve an understanding of the strategic impact that activity will have at home and aboard (I have endeavored in my recent writing to develop this exact point). These criticisms are best addressed by incorporating intelligence specialists into a more fulsome public debate, rather than by narrowing our optic to legal analyses.

Perhaps it seems I am blaming the legal profession for inadequacies of the intelligence profession. I would, however, leave readers with a more general point: as a factual matter, it is currently the case that expertise on national security law often serves as a stand-in for national security expertise. I think it is incumbent upon both the legal and intelligence professions to grapple with the negative implications of that fact.

I therefore stand by my original position that the proper policy response to surveillance disclosures must accommodate questions about both the legality and efficacy of intelligence programs. For the various reasons described in more detail in the earlier article, public debate currently focuses much more on questions of legality.

I very much appreciate General Dunlap’s willingness to engage with my article and thank Just Security for allowing me to respond to his critique. 

About the Author(s)

Marshall Erwin

Head of Trust at Mozilla, Non-Residential Fellow at the Center for Internet and Society at Stanford Law School, Former Intelligence Specialist at the Congressional Research Service, Former Counterterrorism Analyst