The Catholic University of America

Two former inspectors general for the Central Intelligence Agency were among the day's three panelists. Frederick Hitz, left, served from 1990-1998. L. Britt Snider, at podium, is also the author of "The Agency and the Hill: CIA's Relationship with Congress, 1946-2004."

 

Fully and Currently Informed

The late Central Intelligence Agency counter-intelligence chief James Jesus Angleton famously borrowed the phrase "wilderness of mirrors" from poet T.S. Eliot to describe the murky and morally ambiguous world of espionage.

Although they don't carry concealed weapons or otherwise fit the usual image of Hollywood spy heroes, the lawyers who work for the government's intelligence agencies, and on related national security matters, sometimes confront a moral and ethical wilderness of mirrors, too. And when that happens, there is no playbook at the ready.

"I'm sorry to tell you there's nothing out there that tells you what to do. Government lawyers are pretty much on their own," said L. Britt Snider, a former inspector general at the CIA.

Snider was among the panelists assembled for a probing and unusual discussion titled "Classified Matters and Professional Challenges to Attorneys in the Legislative and Executive Branches," an examination of the unique challenges to codes of professional conduct that attorneys who work in the national security field can sometimes face.

Held at the National Press Club in downtown Washington, D.C. on Sept. 21, the program was organized by Catholic University law professor Michael F. Noone with assistance from The American Bar Association Standing Committee on Law and National Security. The symposium was broadcast live on C-SPAN1.

       

As Professor Noone wryly noted during his introductory remarks, the three invited panelists collectively represented nearly 100 years of legal expertise working in classified and national security settings. Even with all of that experience, the men agreed that the tough calls don't get any easier.

"Something can be legal and still not be right," observed Mike Sheehy, who earlier this year concluded a 30-year career as an attorney for congressional intelligence committees. However, deciding on a course of action when one harbors grave doubts about the decision of a superior can be fraught with career danger.

Part of the problem lies in the history of lawyers employed by agencies whose work is classified by nature. Prior to the late 1970s, Congress provided almost no guidelines at all about the reporting requirements of America's intelligence services, such as the CIA, NSA and NRO. By charter, they answered to the president, and Congress was largely a bystander to their activities.

Panelist Frederick Hitz, inspector general of the CIA from 1990-1998, recalled that when President Carter approved an ill-fated helicopter mission to rescue American hostages held in Iran, the administration whispered not a word of the plan to anyone on Capitol Hill, something that would be unthinkable today.

Professor Michael Noone, at podium, conceived and organized "Classified Matters and
Professional Challenges to Attorneys in the Legislative and Executive Branches."
 

The Intelligence Oversight Act of 1980 changed the game. For the first time, firm rules of disclosure were laid out and some of the most powerful members of Congress-informally known as the Gang of Eight-expected to be kept "fully and currently informed" about the covert operations of the intelligence services, although specific methods of intelligence gathering remained protected from the scrutiny of lawmakers.

As the disclosure laws evolved, so did the role of attorneys. They were expected to assess and interpret the language of the new laws and apply it correctly to many different real-life scenarios.

"I can tell you that it took years for those lines to be drawn," remarked Snider, referring to the struggle to bring legal clarity to the policies and decisions of the intelligence chieftains.

The panelists agreed that although the ethical road for attorneys in classified work in paved with better understanding today, occasions still arise when the attorney's advice is ignored or overridden, and his employer commits to a course of action that is of dubious legality.

 

 CUA Law Dean Veryl V. Miles opened the program.

What to do in that instance? The three men agreed that the first course, not always successful, is to clearly (and privately) air out any professional reservations with intelligence managers. In that setting, they are the "client" and are due a lawyer's best advice. But if closed door arguments fail, unappetizing choices remain. A very few lawyers choose to leak to the media, which will result in nearly certain termination from their employer. Some resign on principle, although that action rarely changes the superior's decision, either.

"It's asking an awful lot of government lawyers to shoulder this burden," said Snider.

The Sept. 21 program was the first in a four-part series sponsored by the Columbus School of Law and aims to shed new light into seldom-considered corners of legal practice. The series is titled "Critical Insights in the Law and Law Practice: Ethical and Moral Responsibility."