Protecting Rights from within? Inspectors General and National Security Oversight
Sinnar, Shirin, Stanford Law Review
INTRODUCTION: AN INTERNAL SEPARATION OF POWERS? I. NATIONAL SECURITY INSPECTORS GENERAL A. Distinctive Features of IGs B. Rights Monitoring Among National Security IGs II. CASE STUDIES OF NATIONAL SECURITY IG REVIEWS A. More Consequential Reviews 1. Department of Justice IG review of September 11 detainees 2. Department of Justice IG review of National Security Letters 3. CIA IG review of coercive interrogations B. Less Consequential Reviews 1. Department of Homeland Security IG review of Maher Arar rendition 2. Department of Defense IG review of military monitoring of protests III. ASSESSING IG RIGHTS OVERSIGHT A. Five Dimensions of Rights Oversight B. How IG Reviews Addressed These Dimensions 1. Increasing transparency 2. Identifying rights violations and wrongful conduct 3. Providing relief for victims 4. Holding government officials accountable 5. Revising agency rules to prevent future abuses C. The Strengths and Limits of IGs IV. STRENGTHENING IG RIGHTS OVERSIGHT A. Why Strengthen IG Rights Oversight B. Reforms to Strengthen IGs CONCLUSION
INTRODUCTION: AN INTERNAL SEPARATION OF POWERS?
More than a decade after September 11, 2001, the debate over which institutions of government are best suited to resolve competing liberty and national security concerns continues unabated. While the Bush Administration's unilateralism in detaining suspected terrorists and authorizing secret surveillance initially raised separation of powers concerns, the Obama Administration's aggressive use of drone strikes to target suspected terrorists, with little oversight, demonstrates how salient these questions remain. Congress frequently lacks the information or incentive to oversee executive national security actions that implicate individual rights. Meanwhile, courts often decline to review counterterrorism practices challenged as violations of constitutional rights out of concern for state secrets or institutional competence. (1)
These limitations on traditional external checks on the executive-Congress and the courts--have led to increased academic interest in potential checks within the executive branch. Many legal scholars have argued that executive branch institutions supply, or ought to supply, an alternative constraint on executive national security power. Some argue that these institutions have comparative advantages over courts or Congress in addressing rights concerns; others characterize them as a second-best option necessitated by congressional enfeeblement and judicial abdication.
Thus, Neal Katyal argues that institutions within the executive branch can provide for the "internal separation of powers" in the foreign policy arena and champions bureaucracy as a check on presidential power. (2) Samuel Issacharoff and Richard Pildes argue that internal dissension within the executive branch has historically protected civil liberties in wartime. (3) Dawn Johnsen advocates that legal advisers within the executive branch serve to constrain unlawful executive action. (4) Others contend that internal executive mechanisms have comparative advantages over judicial review: for instance, Gillian Metzger observes that such mechanisms can operate ex ante and continuously, rather than solely in response to justiciable challenges or problems that generate congressional attention, and argues that the policy recommendations of executive institutions may face less resistance than external critiques. (5) Moreover, outside the United States, legal scholars also point to executive oversight institutions as necessary to mitigate inadequate judicial review of state national security activities. (6)
For many of these scholars, the protection of individual rights is a key concern, if not the driving force, behind separation of powers …
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Publication information: Article title: Protecting Rights from within? Inspectors General and National Security Oversight. Contributors: Sinnar, Shirin - Author. Journal title: Stanford Law Review. Volume: 65. Issue: 5 Publication date: May 2013. Page number: 1027+. © 1999 Stanford Law School. COPYRIGHT 2013 Gale Group.
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