nationalsecuritylaw forthcoming scholarship from the American Intelligence Journal

* Forthcoming Scholarship from the American Intelligence Journal

The American Intelligence Journal recently published a nifty special issue on “intelligence and the rule of law.” The article descriptions appear below, but alas the articles themselves aren’t currently online. To get the hard copy, contact the National Military Intelligence Association at admin.

“Intelligence, Law Enforcement, and International Law”

M.E. “Spike” Bowman

American Intelligence Journal (2010), available by subscription only; contact admin

All nations take as an article of faith that national borders are sacrosanct – that internal affairs are the business of the national government alone. If we were to ask ourselves why this is so, we would find the answer more than four centuries distant. However, the fundamental premise on which these rest is the ability of the sovereign to control his own lands. Today we increasingly find that internal unrest, climate change, ethnic conflict and even natural disaster stretch the original concept to the breaking point.

Then, too, the current dangers of transnational threats such as terrorism, weapons proliferation, organized crime and human trafficking belie the sanctity of international borders on which our international political system depends. The perpetrators, their actions and their harms spring from all corners of the globe and they spread thin national legal jurisdictions in a way that commonly defeats the ability of both traditional intelligence gathering and law enforcement effectively to combat the threats.

In a remarkable turnabout from history; the primary dangers today arise not from powerful nations, but from weak ones – nations that are hospitable to corruption, crime and terrorism because they do not have internal strength to withstand these forces. For the first time in human history, the primary threats to society arise out of non-state actors who have refuge in nations too weak to govern. From this arises a unique problem – neither our intelligence nor our law enforcement communities have strongly vested foci on weak nations. Both institutions must re-evaluate their needs and their capabilities.

**

“The Original Privatization of Intelligence: Iran-Contra Revisited”

Scott Glabe, Yale Law School

Sglabe

American Intelligence Journal (2010), available by subscription only; contact admin

This article revisits the Iran-Contra scandal and particularly the role of CIA Director William J. Casey, who functioned as a shadow Secretary of State for much of the early 1980s. It argues that, properly understood, the scandal was but one aspect of a failed attempt to privatize intelligence operations—rather than merely an illicit “diversion” of funds from the U.S. Treasury to the Nicaraguan Contras. It also contends that President Reagan, his senior staff, and perhaps even Director Casey did not know exactly how the Contras were being funded. Indeed, the opportunity to remain ignorant of such matters—and thus comply with the letter if not the spirit of the Boland Amendments—was the impetus for devolving operational authority to the National Security Council in the first place.

By encouraging NSC to "go operational," Director Casey sanctioned not just a secret operation but also a secret policy. As the aftermath of Iran-Contra demonstrated, the American system of government is extremely hostile to such policies. However, it is worth noting that republican democracy does not always prevent the adoption of secret policies; rather, it tends to punish their authors and force their repeal, often well after the fact.

**

“Leashing the Internet Watchdog: Legislative Restraints on Electronic Surveillance in the U.S. and UK”

John Heekin, Catholic University Law School

jpheekin

American Intelligence Journal (2010), available by subscription only; contact admin

The article examines the legislative approaches undertaken by the United States of America and the United Kingdom to regulate the surveillance and interception of electronic communications. Drawing from the recognition of individual privacy rights, the author explores the development and impact of national statutory provisions enacted to accomplish effective oversight of the respective intelligence services within each country.

In the United States, the shifting purposes and provisions of the Foreign Intelligence Surveillance Act of 1978 are tracked from the initial implementation of the legislation to its subsequent revisions following the terrorist attacks of September 11, 2001. Along that timeline, a distinct trend toward greater deference to Executive authority for electronic surveillance operations becomes apparent, though mechanisms for legislative oversight remain in force.

Contrasting the well-established system of legislative oversight in the United States, parliamentary power to regulate the security and intelligence services in the United Kingdom is significantly restricted. However, this restriction appears to be imposed, at least in part, by the legislature itself. Limited access to pertinent information and broad mandates for intelligence service operations hamstring legislative oversight efforts by Parliament, while knowledge of and control over such activities is predominantly left to the Executive office.

Threats to individual privacy from pervasive and unregulated government surveillance of electronic communications are counter-balanced by the interests of national security to regulate such transmissions as a vital component of the global war on terrorism. Although the balance is challenging, democratic societies must strive to ensure effective oversight mechanisms are in place to prevent abusive infringements of personal liberties while protecting the interests of national security.

**

“Fixing What Isn’t Broken: How Congressional Oversight Has Adapted to the Unique Nature of the Intelligence Community”

Sterling Marchand, House Committee on Homeland Security

sterling.marchand

American Intelligence Journal (2010), available by subscription only; contact admin

This article explores the nature of Congressional oversight over the intelligence community. Many have argued that Congressional oversight of intelligence is "broken" and has led to specific intelligence failures. A wide variety of proposals have been made to "fix" this problem – some of which have been implemented, the majority of which have been not. This article argues that while Congressional oversight of the intelligence community is unique and does not follow a "traditional" pattern of oversight, it is far from "broken" or ineffective.

It begins with an examination of the roles that Congressional oversight play generally, and the methods by which committees conduct oversight. It then contrasts the intelligence community with other Executive branch agencies – drawing distinctions that complicate the oversight process.

The article argues, however, that these distinctions do not imply that oversight of the intelligence community is "broken." Rather, the article explains how these "traditional" methods of oversight have adapted to the unique nature of the intelligence community. The article closes with an examination of the various proposals for reform and why each will not "improve" oversight of the intelligence community.

**

“The Intelligence Community: Resolving Conflicts Between Agencies for National Security”

Rachel Segall, Cardozo Law School

Rachel.segall

American Intelligence Journal (2010), available by subscription only; contact admin

This article explores government and public opinion of current information-sharing policies and procedures within the Intelligence Community (“IC”). In order to better understand the current state of the IC, the article initially focuses on the IC’s history, introducing deep-rooted traditions of secrecy and suspicion. The author then assesses the reform measures adopted by the IC after the September 11, 2001 attacks. While noting that these reform measures were much needed changes, the author concludes that the IC must continue modifying its processes to promote information sharing. In particular, the Fort Hood shooting and Christmas Day bomb plot in 2009 – where reports indicate that the IC was well aware of potential threats against the United States before each incident – are clear evidence that the reform measures were incomplete, or even unsuccessful.

In order to combat the potentially tragic information sharing lapses within the Intelligence Community, the article proposes a unique means of managing and reducing information-sharing obstacles: binding arbitration between the conflicting agencies. The current procedures within the IC, while improved since September 11, 2001, still permit agencies to withhold information from other IC agencies, and provide no incentives for information sharing. In turn, the author proposes that binding arbitration should be the only means of exempting information from dissemination within the Intelligence Community. A mandatory attendance policy for all Authorized IC Personnel or IC agency heads at these binding arbitrations would ultimately disincentivize secrecy, prevent information gaps, and create an atmosphere of candidness that has been missing from the Intelligence Community for many years.

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