Intelligence oversight

Harvard Journal on Legislation

Volumn 45, Issue 1, 2008, Pages 199-208

  Baker, James A ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 41849134319     PISSN: 0017808X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (18)

1. The intelligence community consists of sixteen Executive Branch entities, including the Central Intelligence Agency ("CIA"), the National Security Agency ("NSA"), and the intelligence element of the Federal Bureau of Investigation ("FBI"), now known as the National Security Branch ("NSB"). See, e.g., 50 U.S.C. § 401a(4) (2006) (defining the intelligence community).
2. MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 830 (10th ed. 1996).
3. Id.
4. See, e.g., Exec. Order No. 12,333, 46 Fed. Reg. 59941 (Dec. 4, 1981) (setting goals and duties for executive agencies regarding national intelligence activities).
5. See, e.g., Dep't of the Navy v. Egan, 484 U.S. 518, 527 (1988) (citations omitted): The President, after all, is the "Commander in Chief of the Army and Navy of the United States." His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant. This Court has recognized the Government's "compelling interest" in withholding national security information from unauthorized persons in the course of executive business. The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.
6. Congress has recognized the President's preeminent role regarding the intelligence community by making the Director of National Intelligence the head of the intelligence community "[s]ubject to the authority, direction, and control of the President . . . ." 50 U.S.C. § 403(b) (2006).
7. There is a strong argument that the President controls access to classified information as a constitutional matter. There is also an argument that the Constitution grants Congress a right to access classified information. It is beyond the scope of this short paper to analyze these arguments. Instead, this paper assumes that at a minimum the President controls access to classified information originating in the Executive Branch as a practical matter and thereby can effectively determine whether others outside the Executive Branch have access to it.
8. See U.S. CONST. art. II, §§ 1-3.
9. See U.S. CONST. art. II, § 2.
10. See supra note 6.
11. See Foreign Intelligence Surveillance Act ("FISA") of 1978, 50 U.S.C. §§ 1801-1871 (2006) (amended 2007).
12. See U.S. CONST. art. I, § 8 (describing powers granted to Congress).
13. See generally Inspector General Act of 1978, 5 U.S.C. app. § 3 (2006) (amended 1998).
14. See United States v. Reynolds, 345 U.S. 1 (1953).
15. See Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, Exec. Order No. 13,328, 69 Fed. Reg. 6901 (Feb. 11, 2004).
16. The 9/11 Commission is formally known as the National Commission on Terrorist Attacks Upon the United States. See Intelligence Authorization Act for Fiscal Year 2003, Pub. L. No. 107-306, 116 Stat. 2383, 2408-13 (2002).
17. As discussed above, Congress can hold the President accountable by withholding funds or restricting their use, enacting laws the President does not like or refusing to enact ones he wants, calling Executive Branch officials to testify at public hearings, and even impeaching and convicting the President and subordinate Executive Branch officials and removing them from office. To say that Congress has such power, of course, is not to say that it will actually use it. Numerous factors - especially political ones - go into determining whether Congress will take such action in any particular instance.
18. As discussed above, a President has enormous power to determine how and when oversight of intelligence activities takes place, but cannot necessarily prevent oversight from occurring at all. A President's time in office is limited by the Constitution and a successor can revisit any prior executive order or classification decision. Even if the Executive Branch stonewalls Congress and the public and improperly prevents the disclosure of classified information, eventually there will be an election and another President sworn into office. At that point, admittedly belatedly, appropriate oversight of intelligence activities may occur.