RETHINKING JUDICIAL OVERSIGHT
Elizabeth Rindskopf Parker and Bryan Pate
To function effectively, all democratic governments must subject their actions to open public debate, review, discussion, and response. These are the essential ingredients of oversight and accountability. Yet, to survive in an often hostile world, these same governments must also be able to collect, analyze, and use foreign and domestic intelligence—information of ongoing value only insofar as its methods of collection and secrecy can be maintained. This is the paradox of intelligence oversight: the need to achieve open review of secret materials and activities without destroying their value.
In the United States, there are many established mechanisms of oversight and accountability, both inside and outside the government. Under the U.S. Constitution, the three separate branches of the federal government—executive, legislative, and judiciary—share power through a system of checks and balances. Each has the obligation and authority to ensure that the other two branches perform their assigned functions appropriately. This tripartite division naturally encourages oversight and accountability between the branches. In addition, each arm of the government provides its own unique internal oversight. Within the executive branch, management reviews are conducted by numerous offices, each of which typically includes an inspector general and a general counsel to ensure that it is complying with the law. Congressional oversight occurs through the appropriations process, congressional audits, and statutory reporting requirements. Judicial review of the legality of actions taken by the two political branches occurs frequently, with judgments rendered on a case-by-case basis. Outside the government, the actions of each branch are subjected to