Presented to NSA in 2007, printed in The Green Bag
Now that I have told you why lawyers are some of the finestanalysts in the world, let me get closer to the core value of good lawyering and the rule of law. I’d like to call this part: “Intelligence Under the Law – The Value of No.”
It can be very, very hard to be a conscientious attorney workingin the intelligence community, particularly for those whose worktouches on counter-terrorism and war-fighting. It is not because wedon’t work with great people. We do. We work with people whohave dedicated their lives to protecting this great country and all itstands for.It can be hard, instead, because the stakes couldn’t be higher.Hard because we are likely to hear the words: “If we don’t do this,people will die.” You can all supply your own this: “If we don’t col-lect this type of information,” or “If we don’t use this technique,” or“If we don’t extend this authority.” It is extraordinarily difficult to be the attorney standing in front of the freight train that is the needfor “this.” Because we don’t want people to die. In fact, we havechosen to devote our lives to institutions whose sworn duty it is toprevent that, whose sworn duty it is to protect our country, ourfellow Americans.
But it’s not that simple, although during crises, at times of greatthreat, it can surely seem that simple, certainly to the policy maker and operator, and even to the lawyer. We lawyers know – orshould know – better than anyone, that it is not that simple.At the outset, we know that we are a nation of laws, not men.We have chosen a profession that internalizes that truth. We knowthat the rule of law sets this nation apart and is its foundation. Wealso know that we took an oath to support the constitution of theUnited States. We know that there may be agonizing collisions be-tween our duty to protect and our duty to that constitution and therule of law.