* Forthcoming Scholarship (domestic intel edition)
John G. Comiskey
Thesis, Naval Postgraduate School (Master of Arts in Security Studies (Homeland Security and Defense))
State, local, and tribal law enforcement (SLTLE) agencies play a significant role in homeland security. Their intelligence function supports their hometown and the nation’s homeland security. The New York City Police Department (NYPD) recognized that the same intelligence that secures the homeland is required to secure New York City. NYPD restructured its organizational structure and external business practices to acquire the requisite intelligence to secure NYC and in effect facilitated the nation’s homeland security. This thesis identifies NYPD’s intelligence practices as smart practice that SLTLE agencies should adopt, scaled and tailored to their realities and needs, to secure their hometowns and to compound a national effort to secure the homeland.
DANIELLE KEATS CITRON, University of Maryland School of Law
FRANK A. PASQUALE, Seton Hall University – School of Law, Yale University – Yale Information Society Project, Princeton Center for Information Technology Policy, Yale Law School
A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens’ privacy, and chill free expression. In addition to eroding civil liberties, fusion center overreach has resulted in wasted resources without concomitant gains in security.
While many scholars have assumed that this network represents a trade-off between security and civil liberties, our study of fusion centers suggests they are, in fact, mutually reinforcing. Too often, fusion centers’ structure has been based on clever legal strategies for avoiding extant strictures on information-sharing, rather than objective analysis of terror threats. The “Information Sharing Environment” created by fusion centers has short-circuited traditional modes of agency accountability. Our twentieth-century model of agency accountability cannot meaningfully address twenty-first century agency coordination.
A new concept of accountability – network accountability – is needed to address the shortcomings of fusion centers. Network accountability has technical, legal, and institutional dimensions. Technical standards can render data exchange between agencies in the network better subject to review. Legal redress mechanisms can speed the correction of inaccurate or inappropriate information. We also propose a robust strategy for institutionalizing these aspects of network accountability, based on recent regulatory reform.
SIMON CHESTERMAN, New York University – School of Law, Singapore Programme, National University of Singapore – Faculty of Law
As the United States goes through yet another cycle of reform of its intelligence services, this article considers the impact that the formalization of intelligence agencies and their powers has had in Britain. Britain long adopted the legal fiction — manifestly false in practice if not in theory — that the representatives of MI5 and MI6 were merely “ordinary citizens.” In fact they exercised considerable power and the moves to establish a legal foundation for those powers and appropriate checks and balances in the past two decades were, as the European Court held, demanded by the rule of law. At the same time, however, Britain demonstrates some of the problems attendant to establishing such a legal regime. These include the question of how the mandate of intelligence services should be defined, as well as the possibility that powers granted by law may be exercised by a far wider range of actors than when a key check was the need to keep those powers and actors secret. Finally, Britain is of interest in showing the limitations of law in regulating socially-pervasive technologies, such as the closed-circuit television (CCTV) cameras that are ubiquitous in London and other cities large and small. The belated effort to regulate CCTV suggests lessons for other new technologies such as biometric identification and DNA databases.