Lawyers Are Not Spies
Values change, or the public’s perception of what is right or wrong evolves, while the letter of the law may be unmodified. This is among the greatest challenges lawyers working for the intelligence community (IC) face almost daily.
IC lawyers must find ways to balance the contradiction of keeping intelligence secret but also in line with the public interest. “We might consider doing something, we'll go to Congress, and we'll be like, ‘We wouldn't do that,’” said Christopher Fonzone, chief legal officer of the Office of the Director of National Intelligence.
“Disclosing publicly also allows us to self-correct over time,” Fonzone added.
There is a limit to this, imposed by the realities behind these covert activities.
“Cyber intelligence activities can only be done in secret for the most part, which is different than most other legal issues where lawyers go to court and appear in public and discuss things,” Fonzone said.
Therefore, the legal profession must balance how much it shares and how.
Still, how legal professionals approach legislation may have consequences beyond borders and even the present.
“The law can be part of a holistic effort to advance American interests and shape international behavior in ways consistent with the values of liberal democracies,” Fonzone told the audience at this year’s Legal Conference organized by U.S. Cyber Command on Wednesday.
Despite differing roles among legal advisors working at different intelligence agencies, Fonzone encouraged listeners to find ways not only to advance common values, but also to inspire action.
“Don't think of law just as a restraint of our clients’ action, rather the rules of the road are increasingly part of international competition. As we can find new and novel legal issues, it's important to be scrupulous about designing legal frameworks that not only meet the needs of the present, but also withstand the often called ‘backwards glance’ phase of hindsight,” Fonzone explained.
Novel issues arising with technological advancement mean that today’s decisions will be tomorrow’s precedents. Therefore, Fonzone believes legal opinions should be reached with the future in mind, as they will most likely be guidance for future practitioners.
Disclosing publicly also allows us to self-correct over time.
Another demand on judgment is understanding the greater context. Staying up to date with the interests of the administration and the country are additional elements to bear in mind.
“In an area like cyber where the law is changing, and the law isn't particularly precise, I think it is important to be responsive to what the policy needs are,” Fonzone said.
To ensure alignment within the IC and with the rest of an administration is considered from the outset of a legal analysis, communication is key.
For Fonzone, interagency collaboration should be at the beginning of all comprehensive processes.
“When I feel like I make mistakes about coordination, it's because you haven't brought people in early enough in a coordination process,” he shared with the audience.