Shadow Wars – By Rosa Brooks | Foreign Policy

“Particularly since 9/11, the lines between the military and the intelligence community have gotten fuzzy,” observes Rosa Brooks, a Georgetown University Law Professor, on September 20, 2012 in an article entitled, “Shadow Wars: What’s the difference between a spook and a special operator?” in Foreign Policy Magazine.

In our Prosecuting Terrorists course, we talk a great deal about the breakdown of “The Wall” between law enforcement and the intelligence community.  That term became popularized in the debate about amendments to the Foreign Intelligence Surveillance Act (FISA), which is covered to differing extents in our courses National Security Law and Counterterrorism Law.  Thus, they both examine the new fuzziness in the lines between intelligence and law enforcement.

Those latter two courses, unlike the former, also address the issues examined by Professor Brooks’s article.  The legal limits between the military and the intelligence community have been an issue at least since the National Security Act of 1947 created the Central Intelligence Agency (CIA), and the practical limits were contested before then.  Much of the intelligence community is within the Department of Defense, and the two have shared surveillance platforms (e.g., U-2, A-12/SR-71).

 

The legal issues presented by blurring the distinction between the military and the intelligence community is perhaps best seen in the context of targeting killings.  Some targeted killings, apparently, are performed from unmanned aerial vehicles (UAVs) operated by the U.S. Air Force, and others from similar vehicles operated by the CIA.  The legal regime governing killings by the military in an active war zone and by the intelligence community elsewhere are not the same.

In time, I believe that the line between the military and law enforcement will become more of an issue because of cyberspace.  A theft or break-in at a local business normally would have been a matter for the local police.  Now, however, the break-in may occur via networked computers from the far side of the world.  Protecting the homeland, including private property in the homeland, from outside destruction traditionally has been the province of the military.   The military will be a natural resource to call upon in cyberspace for additional reasons: 1) the break-ins or thefts are often the work of foreign government agencies; 2) the aggregate loss of data poses a threat to national security; and 3) in the National Security Agency (NSA), the military has the expertise that law enforcement lacks.  And, since the the NSA is a part of the intelligence community, we really face the blurring of lines between all three: the military, law enforcement, and the intelligence community.

For now, Professor Brooks raises these issues:

The increasing fuzziness of the line between the intelligence community and the military creates confusion and uncertainty: Who decides which agency should take the lead, and on what basis? How are activities coordinated and de-conflicted? What’s the chain of command? What law governs each entity’s activities? Must the CIA comply with the laws of war? Does covert military activity risk depriving the military personnel involved of protection under the Geneva Conventions? No one seems to know — or at least, no one’s saying.

Although it is not meant to provide in-depth analysis or answers, I recommend her article to my students for the purpose of identifying issues.

Shadow Wars – By Rosa Brooks | Foreign Policy

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Authors

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Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

Ryan D. WhiteRyan is currently a third year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic. Full biography

Shelby E. Mann

Ryan D. WhiteShelby is a second year law student at the Syracuse University College of Law. She is the 2018-9 Editor in Chief of the Syracuse Law Review, as well as a member of the Journal on Terrorism and Security Analysis, and the senior editor for the Syrian Accountability Project. During her final year at the University of Missouri, she served as a full-time news producer for ABC 17 News. Shelby spent her first summer of law school at the Shelby County District Attorney General's Office in Memphis, Tenn., in the Public Corruption and Economic Crimes Unit. Full biography

Christopher w. FolkChristopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Anna Maria Castillo

Anna Maria Castillois 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She wrote for this blog when a student. She is now a member of the U.S. Army Judge Advocate General's Corps.

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography

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