Scholarship

New Harvard Law Review Feature on Intelligence Oversight

By Carrie Cordero
Monday, January 11, 2016, 3:43 PM

Harvard Law Review has published a new issue, now available online, which includes a feature article and several responses concerning the role of the President and National Security Council in overseeing foreign intelligence collection. The feature article and overall series could not be more timely, particularly in light of last month’s Wall Street Journal report on U.S. Intelligence Community surveillance of Israeli leaders and the fall-out on Capitol Hill. (See Ben’s take on the dust-up, here.) The WSJ report, of course, is just the latest iteration of the legal and policy discussion of how granular White House and Congressional oversight is or should be over specific foreign intelligence targeting decisions.

And so anyone interested in this issue, including Lawfare readers who are students, practitioners and scholars of the Intelligence Community more broadly, will certainly want to read the new Harvard Law Review article and accompanying responses. The feature piece, Presidential Intelligence, is by Professor Samuel Rascoff, Professor of Law and Faculty Director, Center on Law and Security, New York University Law School. Here is the the abstract:

When scholars — especially legal academics — talk about intelligence oversight, they typically have in mind a set of processes and institutions designed to deter and detect illegality and abuse. In this Article, I focus on another sense of intelligence oversight and a different institutional actor capable of providing it. The kind of oversight that I describe and endorse is distinguished by its concern with promoting effective intelligence collection while seeking to minimize a wide range of costs, including diplomatic blowback, economic harm to American firms, and intrusiveness that threatens privacy rights. The institution that has begun to furnish this more holistic sort of oversight, and that enjoys conspicuous advantage over preexisting bodies in doing so, is the President, aided by his staff (including those serving on the National Security Council).

Pressured by a constellation of prominent interest group actors, including allied governments  and technology firms, the President has begun to weigh in on surveillance policy and to shape the metes and bounds of intelligence collection in a systematic fashion. This development —   which I call presidential intelligence — bears a family resemblance to presidential administration, the turn to centralized, political control that has dominated the scholarship and practice of administrative law for over a generation. In this Article, I offer a descriptive account of the rise of presidential intelligence, a qualified normative defense of its value (as an addition to, rather than a replacement of, existing oversight bodies), and a set of prescriptions for how to design institutions in order to realize its full potential.

There are three responses pieces: one by Steve Slick (online version here and pdf here), Director of the Intelligence Studies Project at the University of Texas at Austin; one by Philip Bobbitt (online version here and pdf here), the Herbert Weschler Professor of Federal Jurisprudence at Columbia Law School and Distinguished Senior Lecturer at the University of Texas Law School; as well as my own response (online version here and pdf here). The written debate concludes with Professor Rascoff’s response to his critics (online version here and pdf here).