Intelligence: March 10, 2005


Lawfare is hurting the CIAs ability to gather information, and capture or kill terrorists. Lawfare is the use of lawsuits, against the CIA, individual CIA agents, and other government officials, by domestic and foreign opponents to whatever the government is doing. Sometimes the suits have merit, sometimes they dont. But fear of litigation is causing many CIA operatives to back off from many operations. For example, if you pay a foreigner for information on terrorists, and later the informant turns out to be a drug lord, with blood on his hands, and he gave you bad information in the bargain, you could get sued for supporting drug lords, and accused of being incompetent for getting burned with bad info. Accusations of torture are also tossed around freely, and this has turned into lawsuits as well. Back in the Fall of 2003, as terrorist attacks increased in Iraq, intelligence officers were tempted to lean on suspects a little more, in order to get life-saving information. A prudent man, in that situation, would take the long view, go by the book, and save his career. There are always operators out there who will take chances, and damn the possible consequences. Lawfare practitioners live to find and sue these fellows. Not all chance takers fall prey to lawfare attacks, either because they dont get caught, or because their payoff is so obvious and spectacular that they become untouchable. But the call for justice and fighting by the rules has a wide appeal, especially to people on the other side of the political fence. Most of the damage is being done to the majority of intelligence operatives who just do their job, and dont like to take chances. The threat of a lawfare attack makes sure these folks take no chances. 

The big problem with all this is that we wont know the extent of the timidity, and resulting damage, for a long time. Of necessity, intelligence operations are wrapped in secrecy. But the bits and pieces of information getting out indicate that a lot of managerial types in the intelligence business dont like to make decisions without having a lawyer handy, and these lawyers dont like to stick their necks out either. 

This is not a new problem. In Britain, laws were passed to, in effect, give MI-6 agents a license to kill, and immunity from any prosecution. There werent many cases where someone got a get-out-of-jail free card because of this. And the policy did enable agents to do their job without worrying about who would second guess them later, and drag them into court. But we  live in a more risk averse world now. Errors and mistakes are less tolerated. Zero Tolerance, while nice in theory, rarely works in practice. And it never works in the world of collecting and analyzing intelligence. 




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