Academic journal article Harvard Law Review

Presidential Intelligence

Academic journal article Harvard Law Review

Presidential Intelligence

Article excerpt

CONTENTS  INTRODUCTION I. THE PRESIDENT AND THE INTELLIGENCE COMMUNITY: A BASELINE    A. Analysis and Covert Action: Highly Presidentialized    B. Organization and Budget: Somewhat Presidentialized    C. Intelligence Collection: Weakly Presidentialized II. THE EMERGENCE OF PRESIDENTIAL INTELLIGENCE    A. The New Political Economy of Intelligence       1. Technology Firms and Economic Misalignment       2. Allies and Strategic Misalignment    B. The Shape of Presidential Intelligence III. ASSESSING PRESIDENTIAL INTELLIGENCE    A. The Benefits of Presidential Intelligence       1. Strategically Sound Intelligence       2. Accountable Intelligence       3. Rights-Regarding Intelligence    B. Three Potential Downsides       1. Politicization       2. Partisanship       3. Abuse IV. Designing Presidential Intelligence    A. Presidential "Findings" for Intelligence Collection    B. Appointing Intelligence Officials CONCLUSION 

INTRODUCTION

For a generation we have "live[d] ... in an era of presidential administration." Whether exercising power directly or through White House units like the Office of Information and Regulatory Affairs (OIRA), Presidents of both parties, employing a variety of mechanisms and summoning a range of justifications, have sought to leave an imprint on the regulatory state. Presidential administration serves not only as a font of centralized power and control, but also as a source of democratic accountability for an administrative state perennially anxious about its legitimacy. The tectonic shift toward presidential control of agencies has reverberated throughout the federal bureaucracy, including a large swath of the national security state--with the striking exception of the so-called "intelligence community."

A major reason for intelligence's exceptionality is historical. In the aftermath of Watergate and the intelligence scandals exposed by the Church (1) and Pike (2) Committees, the reigning assumption was that, of the three branches of government that might exercise meaningful oversight of the intelligence apparatus, the possibility of heightened presidential authority ought to be taken off the table. That is because the architects of the new oversight took presidential control as a given and saw in the White House-intelligence complex the capacity for tyranny and abuse. To resist executive dominance, they chose to empower the other branches of government and to interpose a range of traditional, as well as internal, separation of powers checks. These checks include the Foreign Intelligence Surveillance Court (3) 4 (FISC), specialized congressional oversight committees, (4) inspectors general within the various agencies, (5) and the Intelligence Oversight Board (currently organized as a component of the President's Intelligence Advisory Board (PIAB)). (6) Leading national security law scholarship has also characteristically regarded presidential abuse as one of its points of departure. From Professor Harold Koh's pioneering work 25 years ago (7) to Professor Jack Goldsmith's recent emphasis on the role of "soft law" norms and civil society institutions in constraining the national security executive, (8) scholars have tended to assume that the White House is and ought to be an object, not a source, of intelligence oversight. To practitioners and scholars in this area, the idea of entrusting the President to oversee intelligence is deeply counterintuitive. (9)

But the arrangement seems strange only because of a basic misconception that the intelligence community marches in lockstep with the White House. It does not. (10) In fact, a decentralized intelligence community that has proved adept at empire building (11) and has been largely unconstrained by the political executive has revealed itself to be profoundly vulnerable to questionable intelligence-gathering practices. Indeed, the intelligence community has carried out a range of activities that, while conferring uncertain benefits, have led to significant diplomatic blowback, jeopardized the bottom lines of American industry, and pushed the envelope (at the very least) on questions of privacy and civil liberties. …

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