Protecting Rights from within? Inspectors General and National Security Oversight

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In this Part, I explore how the five IG reviews described above addressed individual rights. I first discuss what it means to protect individual rights in the national security context, identifying five dimensions of rights oversight that are consistent with IGs' broad statutory mandate. Second, I analyze how IG reviews in fact contributed to these five dimensions of rights oversight. I conclude that while IG reviews varied significantly, several reviews created significant transparency on national security conduct, identified violations of the law that escaped judicial review, and even contested government restrictions on liberty where existing law was sparse or ambiguous. Certain reviews led agencies to end the abuses that were documented or to significantly reform their procedures. Yet even stronger reviews largely did not call for, nor did they result in, remedies for most victims, repercussions for high-level executive officials, or significant rights-protective constraints on agency discretion. As a whole, these cases suggest the strengths and limitations of IG rights oversight: IGs are well suited to increase transparency, evaluate the propriety of national security conduct, and reform internal procedures; on the other hand, their independence can be undermined, they are ill positioned to determine violations of constitutional rights, and they depend on political actors to enforce recommendations.

A. Five Dimensions of Rights Oversight

While the internal separation of powers literature is often concerned with protecting individual rights against an overreaching executive, the literature tells us little about how internal institutions should protect individual rights. My normative premise is that an ideal system of "rights oversight" in the national security context should address at least five objectives: (1) increasing the transparency of national security practices; (2) identifying rights violations and wrongful government conduct, whether or not that conduct contravenes existing law; (3) providing relief for victims of abuses; (4) holding government officials accountable for wrongful conduct abridging rights; and (5) revising agency rules to prevent future abuses. As I discuss further below, legal scholars often identify these goals (individually or in some combination) as the goal of judicial review or review by other institutions designed to protect individual rights. In my view, an internal institution may be valuable in contributing to rights protection even if it does not address all five of these dimensions, so long as the overall structure of rights oversight addresses the whole. (194) On the other hand, if the question is whether a particular executive mechanism can compensate for inadequate external review by institutions that we expect to perform the full range of oversight functions, such as courts, then it is important to assess that institution's contributions to all five dimensions.

Of course, the relative priority of these goals may be contested, even among rights advocates, and an extensive literature debates effective remedial schemes for constitutional and civil rights violations. (195) Without resolving such disagreements here, I use this metric primarily to describe how IGs contributed to varying facets of rights protection and where they fell short.

All five of these dimensions are consistent with IGs' broad statutory mandates, though some are closer to IGs' core mandates. The Inspector General Act clearly envisioned IGs as mechanisms to increase transparency, identify serious problems in agencies, and recommend reforms. The statute does not specifically address individual relief for victims or accountability for individuals responsible for abuses (apart from criminal violations), though both of these functions fall within IGs' broad mandate to recommend "corrective action." (196) Importantly, IGs have only an advisory role: they can recommend corrective measures and monitor compliance, but they rely on agencies and Congress to implement reform. …