The Corner

Re: Capture, Not Kill

Jonah hits on a central problem of fighting a military war with a law enforcement mindset. In the military, primacy is given not only to making sure orders are followed but that they are clear and understandable to those in the chain of command. Lawyers are trained to give directions that will be defensible if there is a later lawsuit or other claim. If people are arguing about what the words of an order mean, that is a major problem, and whether Berger or Black have it right, there certainly is ambiguity. The same can be said of the FISA wall. Former AG Reno stressed today that if you look at the words of the governing procedures, there are plenty of communications that are permitted. That may be so. But look at how the they read (in just the portion the FISA Court of Review quoted:) “the FBI and Criminal Division should ensure that advice intended to preserve the option of a criminal prosecution does not inadvertently result in either the fact or the appearance of the Criminal Division’s directing or controlling the [foreign intelligence] or [foreign counterintelligence] investigation toward law enforcement objectives.” 1995 Procedures at 2, 6. If you were the FBI or DOJ’s Criminal Division, would you be sure you’d know what you were supposed to do? Is it any wonder that the Staff Statement (No. 9) says the wall “apparently caused agents to be less aggressive than they might otherwise have been” in using FISA at all?

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