Throughout our work we came across Intelligence Community leaders, operators, and analysts who claimed that they couldn't do their jobs because of a "legal issue." These "legal issues" arose in a variety of contexts, ranging from the Intelligence Community's dealings with U.S. persons to the legality of certain covert actions. And although there are, of course, very real (and necessary) legal restrictions on the Intelligence Community, quite often the cited legal impediments ended up being either myths that overcautious lawyers had never debunked or policy choices swathed in pseudo-legal justifications. Needless to say, such confusion about what the law actually requires can seriously hinder the Intelligence Community's ability to be proactive and innovative. Moreover, over time, it can breed uncertainty about real legal prohibitions.
We believe this problem is the result of several factors, but for present purposes we note two. First, in the past there has not been
a sizable legal staff that focused on Community issues. As a result, many Community problems were addressed through ad hoc , interagency task forces that tended to gravitate toward lowest common denominator solutions that were based on consensus and allowed action to be stalled by the doubts of the most cautious legal shop. Second, many rules and regulations governing the Intelligence Community have existed for decades with little thought given to the legal basis for the rules, or whether circumstances have changed the rules' applicability. Under such circumstances, it is unsurprising that legal "myths" have evolved.
The recent creation of a DNI General Counsel's office will increase the probability that Community legal issues are addressed more seriously. By creating such an office, the DNI will help ensure that the Intelligence Community is fully able to confront the many real--and imaginary--legal issues that will arise.
