The Law of Foreign and National Intelligence

Pleased to see this published.  I co-authored the chapter entitled “The Law of Foreign and National Intelligence."

National Security Law & Policy, Third Edition

Jonathan Fredman

Jonathan Fredman has held a number of legal and policy positions for the U.S. Government, including Assistant Deputy Director of National Intelligence for Special Programs, chief counsel to the Director of Central Intelligence Counterterrorist Center, and Special Assistant to the Director of Central Intelligence.

He provides legal and policy guidance with respect to intelligence operations, science and technology, compliance, and investigations.

He has taught national security law, the law of foreign intelligence, and the law of counterterrorism, and has been published in the ABA National Security Law Report, Yale Law and Policy Review, and Studies in Intelligence.

Prior to entering government, Mr. Fredman was an attorney in private practice with the firm of Paul, Weiss, Rifkind, Wharton and Garrison in New York and Washington, and a law clerk for U.S. District Judge Charles M. Metzner of the Southern District of New York.

He graduated from Princeton University in 1979 magna cum laude with an A.B. in Public and International Affairs, and received his J.D. from Columbia Law School in 1983, where he was a Harlan Fiske Stone Scholar.

Mr. Fredman is a recipient of the George H.W. Bush Award for Excellence in Counterterrorism, the National Intelligence Exceptional Achievement Medal, and the Middle East Mission Manager Medallion.

He is a member of the Council on Foreign Relations.

—

Mr. Fredman has addressed audiences at Harvard Law School and the John F. Kennedy School of Government; Princeton University, Woodrow Wilson School of Public and International Affairs; Columbia Law School; Georgetown Law School and the Edmund A. Walsh School of Foreign Service; George Washington University, Elliott School of International Affairs; American University, School of International Service; Stanford University; University of Virginia Law School; University of Pennsylvania Law School; National Defense University; National War College; Army War College; Council on Foreign Relations; World Affairs Council; National Advocacy Center; and others.

—

Mr. Fredman is the author of “Covert Action, Loss of Life, and the Prohibition on Assassination,” published in Studies in Intelligence, semi-annual unclassified edition, no. 1 (1997); “Intelligence Agencies, Law Enforcement, and the Prosecution Team,” published in the Yale Law and Policy Review, vol. 16, no. 2 (1998); and “Covert Action Policy and Procedure,” published in the American Bar Association National Security Law Report, vol. 31, nos. 3-4 (2009). He is the co-author, with Richard Morgan, of the chapter “The Law of Foreign and National Intelligence” in National Security Law and Policy (Carolina Academic Press, 2015).

Jonathan Fredman

Jonathan Fredman has held a number of legal and policy positions for the U.S. Government, including Assistant Deputy Director of National Intelligence for Special Programs, chief counsel to the Director of Central Intelligence Counterterrorist Center, and Special Assistant to the Director of Central Intelligence.

He provides legal and policy guidance with respect to intelligence operations, science and technology, compliance, and investigations.

He has taught national security law, the law of foreign intelligence, and the law of counterterrorism, and has been published in the ABA National Security Law Report, Yale Law and Policy Review, and Studies in Intelligence.

Prior to entering government, Mr. Fredman was an attorney in private practice with the firm of Paul, Weiss, Rifkind, Wharton and Garrison in New York and Washington, and a law clerk for U.S. District Judge Charles M. Metzner of the Southern District of New York.

He graduated from Princeton University in 1979 magna cum laude with an A.B. in Public and International Affairs, and received his J.D. from Columbia Law School in 1983, where he was a Harlan Fiske Stone Scholar.

Mr. Fredman is a recipient of the George H.W. Bush Award for Excellence in Counterterrorism, the National Intelligence Exceptional Achievement Medal, and the Middle East Mission Manager Medallion.

He is a member of the Council on Foreign Relations.

“If the detainee dies you’re doing it wrong.”

One of the most quotable phrases coming out of Bush’s Global War on Terrorism now appears to be highly questionable. Then-CIA lawyer Jonathan Fredman was quoted by Senator Carl Levin, Chair of the Senate Armed Services Committee, as having said that the standard of detainee treatment during interrogations was “basically subject to perception. If the detainee dies you’re doing it wrong.”

This quote continues to be used in articles and books, but reporting by Stuart Taylor, Jr. (no relation) in the NationalJournal and by Benjamin Wittes of Lawfare sheds light on the shaky ground on which it rests. 

Keep reading:  “If the detainee dies you’re doing it wrong.”

Memo to the Press: Just Shut Up About Jonathan Fredman

The quotation is apparently too sexy to resist—too sexy even to Google its speaker’s name before running with it. A single Google search would, after all, yield this article by Stuart Taylor Jr. in National Journal—an article that should put any journalist on notice that the quotation by a career CIA lawyer named Jonathan Fredman is sketchy:

“It is basically subject to perception. If the detainee dies you’re doing it wrong.”

This was perhaps the most chillingly outrageous, widely quoted statement by a government official to be aired by Senate Armed Services Committee Chairman Carl Levin, D-Mich., at hearings last summer and in the committee’s December 11 report on abuse of detainees by U.S. forces.

But the quoted official, CIA lawyer Jonathan Fredman, told the committee on November 18 that he had made no such statement. In fact, Fredman added in a heretofore confidential, five-page memo, he had stressed at the 2002 meeting with interrogators at the Guantanamo Bay detention facility described in the Levin committee’s report, “Interrogation practices and legal guidance must not be based upon anyone’s subjective perception” (emphasis added) but rather upon “definitive and binding legal analysis.”

Remarkably, the 18-page report issued by the committee (headed “Executive Summary”) does not mention Fredman’s vehement—and, in my view, quite plausible—denial of the horrifying words attributed to him in a document of debatable reliability that the report, and Levin, have treated as established fact.

Yet one by one, reputable journalists and scholars keep sticking Fredman’s quotation in their books and articles.

Keep reading:  Memo to the Press: Just Shut Up About Jonathan Fredman

Jonathan Fredman

Mr. Fredman is the author of “Covert Action, Loss of Life, and the Prohibition on Assassination,” published in Studies in Intelligence, semi-annual unclassified edition, no. 1 (1997); “Intelligence Agencies, Law Enforcement, and the Prosecution Team,” published in the Yale Law and Policy Review, vol. 16, no. 2 (1998); and “Covert Action Policy and Procedure,” published in the American Bar Association National Security Law Report, vol. 31, nos. 3-4 (2009).  He is the co-author, with Richard Morgan, of the chapter “The Law of Foreign and National Intelligence” in National Security Law and Policy (Carolina Academic Press, 2015).

He has addressed audiences at Harvard Law School and the John F. Kennedy School of Government; Princeton University, Woodrow Wilson School of Public and International Affairs; Columbia Law School; Georgetown Law School and the Edmund A. Walsh School of Foreign Service; George Washington University, Elliott School of International Affairs; American University, School of International Service; University of Virginia Law School; University of Pennsylvania Law School; National Defense University; National War College; Army War College; Council on Foreign Relations; World Affairs Council; National Advocacy Center; and others.