Domesticating intelligence

Southern California Law Review

Volumn 83, Issue 3, 2010, Pages 575-648

  Rascoff, Samuel J ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 77955369927     PISSN: 00383910     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (521)

1. James Risen & Eric Lichtblau, Bush Lets U. S. Spy on Callers Without Courts, N. Y. TIMES, Dec. 16, 2005, at A1.
2. OFFICE OF PUB. AFFAIRS, U. S. DEP'T OF JUSTICE, THE NSA PROGRAM TO DETECT and PREVENT TERRORIST ATTACKS: MYTH V. REALITY 4 (2006), available at http://www.justice.gov/opa/documents/nsa-myth-v-realitypdf (referring to the National Security Agency's activities as the "terrorist surveillance program").
3. Risen & Lichtblau, supra note 1.
4. See Office of Inspector Gen., Dep't of Def., et al., report No. 2009-0013-AS, (U) Unclassified report on the President's Surveillance Program 1 (2009), available at http://judiciary.house.gov/hearings/pdf/ lGTSPReport090710pdf [hereinafter IG REPORT] (explaining that the President's Surveillance Program included "several different intelligence activities").
5. The initial legal analysis of the program by the Office of Legal Counsel ("OLC") was conducted by a single lawyer, Deputy Assistant Attorney General John Yoo. Id. at 10.
6. Even Yoo's immediate superior at the OLC, Assistant Attorney General Jay Bybee, was unaware of the existence of the TSP. Id. at 10, 14. According to the Inspector General of the Department of Justice ("DOJ"), this arrangement was "extraordinary" and "inappropriate" and led to legal analysis that "at a minimum was factually flawed." Id. at 30.
7. Meanwhile, the Acting General Counsel of the NSA and the NSA Inspector General were permitted to know about the program but were denied access to its legal justification. See Barton Gellman, Conflict over Spying Led White House to Brink, WASH. POST, Sept. 14, 2008, at A1.
8. See Daniel Klaidman, Now We Know What the Battle Was About, NEWSWEEK, Dec. 22, 2008, at 46 (reporting that beyond the TSP itself, much of the legal concern within the Department of Justice focused on other aspects of the President's Surveillance Program, including an effort to mine vast quantities of electronic communications and records for patterns potentially revealing a threat).
9. Foreign Intelligence Surveillance Act (FISA) of 1978, Pub. L. No. 95-511, 92 Stat. 1783.
10. The statute has since been substantially overhauled, first on a temporary basis by the Protect America Act of 2007, Pub. L. No. 110-55, 121 Stat. 552, then more definitively by the FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436.
11. FISA provides for the establishment of the FISC "to hear applications for and grant orders approving electronic surveillance anywhere within the United States under the procedures set forth in th[e] Act." FISA § 103 (a), 92 Stat, at 1788
12. (codified at 50 U. S. C. § 1803 (2006)).
13. Although the TSP was not formally presented to the FISC, two successive chief judges of the special court, Lamberth and Kollar-Kotelly, were aware of the TSP's existence and expressed concerns about its legality. Michael Isikoff, The Fed Who Blew the Whistle, Newsweek, Dec. 22, 2008, at 40. Eventually James Baker, then head of the DOJ office in charge of processing FISA warrant applications, expressed his concern to Chief Judge Lamberth that TSP-derived information was being used in other FISA warrant applications. Lamberth then warned Attorney General Ashcroft and NSA director Michael Hayden that further use of such information would prompt him to issue an opinion effectively banning the program. Id. This threat seemed to temporarily stop the practice of importing TSP information into FISA applications. The practice resumed, however, after Chief Judge Lamberth left the FISC, and was met with criticism by Chief Judge Kollar-Kotelly. See id.; Risen & Lichtblau, supra note 1.
14. IG REPORT, supra note 4, at 23. The "Gang of Eight" refers to the senior members of the Senate and House intelligence committees along with the Senate majority and minority leaders and the speaker of the House and the House minority leader.
15. See id. The legal obligation to keep the Gang of Eight informed on covert action was created by the Intelligence Authorization Act for Fiscal Year 1981, Pub. L. No. 96-450, § 501, 94 Stat. 1975, 1981-82 (1980).
16. Charles Babington & Dafna Linzer, Senator Sounded Alarm in '03, WASH. POST, Dec. 20, 2005, at A10. Senator Rockefeller's handwritten letter is available at http://www.fas.org/irp/news/2005/12/rock121905pdf (last visited Mar. 1, 2010).
17. Briefings concerning the TSP seem to have been limited to the Gang of Eight, see IG REPORT, supra note 4, at 23, or an even more restricted audience, see Babington & Linzer, supra.
18. See also IG REPORT, supra note 4, at 29 (observing that acting Attorney General James Comey thought that parts of the TSP "raised 'serious issues' about congressional notification").
19. See, e.g., Michael Hayden, tOp-Ed, Warrantless Criticism, N. Y. TIMES, July 27, 2009, at A21.
20. See IG REPORT, supra note 4, at 33 (stating that the DOJ's Office of the Inspector General "found it difficult to assess or quantify the overall effectiveness of the [TSP] program");
21. id. at 36 (stating that many intelligence community officials "had difficulty citing specific instances where [TSP] reporting had directly contributed to counterterrorism successes").
22. See id. at 34.
23. Id. at 36. The most that the Inspector General's report offers is that there were several instances in which the TSP may have contributed to a counterterrorism success, none of which could be described in the unclassified version of the report. Id.
24. Domestic intelligence is not concerned exclusively with terrorism. For example, identifying other countries' spies inside the United States is also a priority. See Foreign Intelligence Surveillance Act (FISA) of 1978, Pub. L. No. 95-511, § 101 (b) (l) (B), 92 Stat. 1783, 1784
25. (codified at 50 U. S. C. § 1801 (b) (1) (B) (2006)) (defining an "agent of a foreign power" eligible for domestic surveillance to include any person who "acts for or on behalf of a foreign power which engages in clandestine activities in the United States contrary to the interests of the United States"). Post-9/11 discussions, however, as well as this Article, focus on the role of domestic intelligence in counterterrorism. Throughout the Article, I use the word "governance" rather than "oversight" in describing the legal regime under which intelligence operates in order to avoid the too-narrow association between oversight and the prevention of abuse.
26. Besides the TSP, many other domestic intelligence programs initiated after 9/11 have come to public attention. One of the earliest was Total Information Awareness ("TIA"), created by Vice Admiral John Poindexter, director of the Office of Information Awareness within the Department of Defense. John Markoff, Pentagon Plans a Computer System That Would Peek at Personal Data of Americans, N. Y. TIMES, Nov. 9, 2002, at A12. Among other activities, TIA was intended to allow warrantless access by the military to a wide range of government and commercial databases.
27. See Philip Shenon with John Schwartz, JetBlue Target of Inquiries by 2 Agencies, N. Y. TIMES, Sept. 23, 2003, at C1 (reporting that the Army had asked a defense contractor participating in the development of TIA to hire a subcontractor to mine data from JetBlue Airways). in response to strong public and congressional opposition to TIA, the administration renamed the program "Terrorism Information Awareness."
28. See DEF. ADVANCED RESEARCH PROJECTS AGENCY, U. S. DEP'T OF DEF., REPORT TO CONGRESS REGARDING THE TERRORISM INFORMATION AWARENESS PROGRAM 1 n. 1 (May 20, 2003), available at http://w2.eff.org/Privacy/TIA/20030520-tia-report.php. Continued concerns over the scope of the program, and over the resignation of its director after revelations that he planned to set up a futurestrading market for predictions about terrorism and assassination, led to the shuttering of the Defense Department's Office of Information Awareness.
29. See Eric Schmitt, Poindexter Will Be Quitting over Terrorism Betting Plan, N. Y. TIMES, Aug. 1, 2003, at A11. The data-mining programs may have continued under the TSP. Shane Harris, TIA Lives On, Nat'L J., Feb. 23, 2006;
30. Matt Kelley, Feds Sharpen Secret Tools for Data Mining, USA TODAY, July 20, 2006, at A5 ("At least five of the datamining programs [pursued by U. S. intelligence agencies] were developed under a Pentagon program, called Total Information Awareness....").
31. Additional federal and state post-9/11 domestic intelligence initiatives have included the following: the Operation Terrorism Information and Prevention System ("TIPS"), a plan to "enlist truckers, letter carriers, ship captains and others in reporting suspicious activity to the authorities", Elisabeth Bumiller, Bush Pushes Volunteerism, but a Senate Seat Shares the Agenda, N. Y. TIMES, Apr. 9, 2002, at A21;
32. Threat and Local Observation Notice ("TALON") reports, an Air Force program monitoring antiwar groups, see Lisa Myers, Douglas Pasternak & Rich Gardella, Is the Pentagon Spying on Americans?, NBC NEWS, Dec. 14, 2005, www.msnbc.msn.com/id/10454316;
33. a comparable Army initiative, see William Yardley, Army Looking into Claim That an Employee Monitored U. S. Protest Groups, N. Y. TIMES, Aug. 2, 2009, at A16 (discussing how information gathered by an Army official regarding individuals who were involved in the peace movement may have been shared with local law enforcement);
34. the Multistate Anti-Terrorism Information Exchange ("MATRIX"), a program to analyze information obtained from state government sources, see John Schwartz, Privacy Fears Erode Support for a Network to Fight Crime, N. Y. Times, Mar. 15, 2004, at C1;
35. and the Department of Homeland Security ("DHS") National Applications Office's domestic counterterrorism satellite surveillance, see Audrey Hudson, Homeland Security Abandons Satellite Surveillance Program, WASH. TIMES, June 24, 2009, at A3.
36. The DHS and the National Counterterrorism Center are examples.
37. The Federal Bureau of Investigation ("FBI") is an example.
38. See, e.g., Department of Homeland Security, State and Local Fusion Centers, http://www.dhs.gov/files/programs/gc-1156877184684.shtm (last visited Mar. 1, 2010). See also Janet Napolitano, Sec'y, DHS, Remarks at the Council on Foreign Relations (July 29, 2009) (transcript available at http://www.dhs.gov/ ynews/speeches/sp-1248891649195.shtm) (calling for a "more layered, networked and resilient" response to terrorism).
39. See, e.g., CHRISTOPHER DICKEY, SECURING THE CITY: INSIDE AMERICA'S BEST COUNTERTERRORISM FORCE-THE NYPD 3-4 (2009) (describing the counterterrorism efforts of the New York City Police Department).
40. See, e.g., LAURA K. DONOHUE, THE COST OF COUNTERTERRORISM: POWER, POLITICS, and LIBERTY 25-29 (2008) (discussing some of the costs of counterterrorism laws in countries such as the United States).
41. As Congressman Rush Holt, member of the House Permanent Select Committee on Intelligence, recently put it, "[T]he intelligence community has not undergone comprehensive examination since [the Church Committee of the mid-1970s]... and it needs it." See Christopher Hayes, The Secret Government, NATION, Sept. 14, 2009, available at http://www.thenation.com/doc/ 20090914/hayes (discussing the evolution of congressional oversight of intelligence gathering agencies since the 1970s).
42. See JACK. GOLDSMITH, THE TERROR PRESIDENCY: LAW and JUDGMENT INSIDE THE BUSH ADMINISTRATION 0-98 (2007) (discussing the tension between protecting the country from another attack and staying thin the confines of the law).
43. See, e.g, PHILIP B. HEYMANN, TERRORISM, FREEDOM, and SECURITY: WINNING WITHOUT WAR 138 2003 (arguing that "a state that relies on intelligence activities instead of criminal investigations is wely to look promising as a more effective way of preventing terrorism, but it would create grave new risks").
44. My account of intelligence governance is consistent with an emerging discourse that focuses on "intelligence under law." See, e.g., James B. Comey, Intelligence Under the Law, 10 GREEN BAG 2D 439 (2007).
45. See Matthew D. Adler, Against "Individual Risk": A Sympathetic Critique of Risk Assessment, 153 U. P A. L. REV. 1121, 1132 (2005) (referring to risk assessments as "a giant leap forward for public rationality");
46. Mary Jane Angelo, Harnessing the Power of Science in Environmental Law: Why We Should, Why We Don't, and How We Can, 86 TEX. L. REV. 1527, 1546 (2008) ("[R]isk assessment is used in virtually every area of environmental law.").
47. Risk assessment is a contested concept, however, not least because it implicates the complex interplay between science and politics. See, e.g., Jamie A. Grodsky, Genetics and Environmental Law: Redefining Public Health, 93 CAL. L. REV. 174, 175-76 (2005) (discussing the application of " toxicogenetics" to risk assessment and explaining that the possibilities presented by science will necessitate making certain policy choices).
48. By "rationality review", I mean to embrace a range of techniques focused on ensuring basic rationality in public processes. Such techniques include, but are not limited to, cost-benefit and costeffectiveness analyses. I mean to imply no connection between rationality review and rational basis review in constitutional law.
49. Such a debate rages throughout many dimensions of counterterrorism. Specific decisions that turn on this conceptual divide include whether alleged Christmas Day bomber Umar Farouk Abdulmutallab ought to have received a Miranda warning, see, e.g., Letter from Eric H. Holder, Jr., Attorney Gen., to Senator Mitch McConnell 1, 3 (Feb. 3, 2010), available at http://www.justice.gov/cjs/ docs/ag-letter-2-3-10pdf (explaining that the decision to interrogate and charge Abdulmutallab consistently with federal criminal practice reflected "long-established and publicly known" DOJ policies and arguing that "[n]either advising Abdulmutallab of his Miranda rights nor granting him access to counsel prevents us from obtaining intelligence from him");
50. Letter from Senators Dianne Feinstein and Patrick Leahy to President Barack Obama (Feb. 11, 2010), available at http://feinstein. senate.gov/public/index.cfm?FuseAction=Files. View & FileStore-id=08f3b607- a24c-4452-8085-eca761853189;
51. the choice of tribunal (military or civilian) for trying self-confessed 9/11 mastermind Khaled Sheikh Mohammed, see, e.g., Letter from Senators Feinstein and Leahy, supra (encouraging the president to try the plotters of the 9/11 attacks in an ordinary federal criminal proceeding rather than a military tribunal); and whether drone attacks targeting U. S. citizens such as charismatic Imam Anwar al-Awlaki comply with due process, see, e.g., Greg Miller, U. S. Citizen in CIA's Cross Hairs, L. A. TIMES, Jan. 31, 2010, available at http://www.latimes.com/news/nation-andworld/la-fg-cia-awlaki31- 2010jan31, 0, 6008679. story (noting that al-Awlaki would be among the first Americans targeted for assassination by drone attack).
52. Cf. Edward P. Richards, Public Health Law as Administrative Law: Example Lessons, 10 J. HEALTH CARE L. & POL'Y 61 (2007) (discussing how public health authorities have relied on administrative law to monitor the progression of diseases and regulate behavior throughout history).
53. A recent working paper issued by the Council on Foreign Relations notes that "[g]iven the importance of domestic intelligence efforts to the homeland, there is surprisingly little consensus on how to define domestic intelligence." Daniel B. Prieto, Council on Foreign Relations, War About Terror: Civil Liberties and National Security After 9/11, at 45 (Feb. 2009) (unpublished manuscript, available at http://www.cfr.org/content/publications/ attachments/CiviLLiberties-WorkingPaper.pd)
54. See generally David Heyman, Finding the Enemy Within: Towards a Framework for Domestic Intelligence, in CTR. FOR STRATEGIC & INT'L STUDIES, 2006 CONFERENCE: THREATS AT OUR THRESHOLD 151 (2006), available at http://csis.org/images/stories/HomelandSecurity/071022-Chap4- FindingTheEnemyWithinpdf (discussing the need to develop a framework to systematize the collection of increasingly important domestic intelligence). More generally, as Central Intelligence Agency ("CIA") veteran Mark Lowenthal has noted, "Virtually every book written on the subject of intelligence begins with a discussion of what 'intelligence' means, or at least how the author intends to use the term. This editorial fact tells us much about the field of intelligence."
55. Kristan J. Wheaton & Michael T. Beerbower, Towards a New Definition of Intelligence, 17 STAN. L. & POL'Y REV. 319, 320 (2006) (footnote omitted). See generally id. (arguing for the need to have a stable definition of intelligence to reduce uncertainty for decisionmakers).
56. These developments, I contend, are internally connected. The "shape" of domestic intelligence determines the "shape" of domestic intelligence governance, and the means of governing intelligence reify and reinforce specific modalities of practicing domestic intelligence.
57. Domestic intelligence as risk assessment is simultaneously broader and narrower than other conceptions of domestic intelligence. It is broader in that it seeks out all information that may prove beneficial at the level of risk management decisionmaking. It is narrower in that it does not include the interventions that are taken on the strength of the risk assessments. Other scholars appear to include these interventions as part of the domestic intelligence process. See GREGORY F. TREVERTON, RAND CORP., REORGANIZING U. S. DOMESTIC INTELLIGENCE: ASSESSING THE OPTIONS 16 (2008).
58. My definition accords with Judge Richard Posner's, who is careful to note that the British Security Service ("MI5") and the Canadian Security Intelligence Service ("CSIS") are properly thought of as security services rather than intelligence agencies because they also undertake certain interventions. RICHARD A. POSNER, COUNTERING TERRORISM: BLURRED FOCUS, HALTING STEPS, at xii (2007).
59. To take a recent example, after a Somali-American teen from Minneapolis carried out a suicide bombing in Somalia, the FBI began monitoring Somali communities across the country. See Charlie Savage, Wider Authority for F. B. I. Agents Stirs Concern, N. Y. TIMES, Oct. 29, 2009, at A1 ("Instead of collecting information only on people about whom they had a tip or links to the teenager, agents fanned out to scrutinize Somali communities, including in Seattle and Columbus, Ohio.").
60. in an important sense, judicial review is a special case-albeit the most significant one-of a larger phenomenon: compliance-based review. See James A. Baker, Symposium Introduction: Intelligence Oversight, 45 HARV. J. ON LEOIS. 199, 202 (2008) (oversight is centrally "about knowing whether [intelligence agencies] have complied with the [relevant] rules").
61. See Motor Vehicle Mfrs. Ass'n of the U. S. v. State Farm Mut. Auto. Ins. Co., 463 U. S. 29, 42-44 (1983) (stating that "reasoned analysis" requires that agencies must thoroughly consider relevant facts and alternatives).
62. See POSNER, supra note 32 (making structural suggestions regarding the reorganization of intelligence); RICHARD A. POSNER, REMAKING DOMESTIC INTELLIGENCE (2005) (arguing for the creation of a domestic intelligence agency);
63. TREVERTON, supra note 32 (laying out the considerations for creating a domestic intelligence agency separate from law enforcement).
64. See also MARKLE FOUND., PROTECTING AMERICA'S FREEDOM in THE INFORMATION AGE (2002), available at http://www.markle.org/downloadable-assets/nstf-fullpdf (proposing a networked, decentralized system of information collection, analysis, and sharing);
65. WILLIAM E. ODOM, FIXING INTELLIGENCE: FOR A MORE SECURE AMERICA (2003);
66. James Burch, A Domestic Intelligence Agency for the United States? A Comparative Analysis of Domestic Intelligence Agencies and Their Implications for Homeland Security, HOMELAND SECURITY AFF., June 2007, art. 1, http://www.hsaj.org/pages/volume3/issue2/pdfs/3.2.2pdf;
67. Siobhan Gorman, FBI, CIA Remain Worlds Apart, NAT'L J., Aug. 2, 2003, available at http://www.govexec.com/dailyfed/0803/080103njl.htm (noting how the differences between the organizational cultures of the FBI and CIA impair the effectiveness of intelligence and proposing solutions).
68. The debate about institutional design continues to carry practical implications. Siobhan Gorman, Obama Picks Military Man, Blair, as Top Spymaster, WALL ST. J., Dec. 20, 2008, at A4 (reporting that "the Obama team is weighing whether to propose the creation of a domestic intelligence agency").
69. For an important recent article on the redesign of intelligence oversight mechanisms, see Anne Joseph O'Connell, The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World, 94 CAL. L. REV. 1655 (2006) (discussing the complex interplay between the newly reorganized intelligence bureaucracy and its congressional overseers).
70. See ALFRED CUMMING & TODD MASSE, CONG. RESEARCH SERV., REPORT NO. RL33033, INTELLIGENCE REFORM IMPLEMENTATION AT THE FEDERAL BUREAU OF INVESTIGATION: ISSUES and OPTIONS FOR CONGRESS 15 (2005), available at http://www.fas.org/sgp/crs/intel/RL33033pdf (identifying "synergists", who advocate a combined intelligence-law enforcement mission, and "skeptics", who oppose it);
71. STEPHEN J. SCHULHOFER, THE ENEMY WITHIN 67 (2002).
72. See also Harvey Rishikof, The Role of the Federal Bureau of Investigation in National Security, in INTELLIGENCE and NATIONAL SECURITY STRATEGIST: ENDURING ISSUES and CHALLENGES 125 (Roger Z. George & Robert D. Kline eds., 2006).
73. See Eric A. Posner, Fear and the Regulatory Model of Counterterrorism, 25 HARV. J. L. & PUB. POL'Y 681, 696 (2002) (arguing that the regulatory agency mode in which "a special government agency or existing agencies... enact regulations to reduce the risk of terrorist attacks or the resulting harm" would be more effective than the current legal model);
74. Jessica Stern & Jonathan B. Wiener, Precaution Against Terrorism, 9 J. RISK RES. 393, 441 (2006) (calling for a "systematic analysis of [the] benefits, costs and risks before [making important counterterrorism decisions]").
75. A notable exception is THE CHALLENGE OF DOMESTIC INTELLIGENCE in A FREE SOCIETY: A MULTIDISCIPLINARY LOOK AT THE CREATION OF A U. S. DOMESTIC COUNTERTERRORISM INTELLIGENCE AGENCY (Brian A. Jackson ed., 2009).
76. Academic focus on electronic surveillance rather than human intelligence probably reflects the way in which the former is considerably more regulated than the latter. This distinction does not necessarily obtain overseas. See, e.g., Jacqueline E. Ross, The Place of Covert Surveillance in Democratic Societies: A Comparative Study of the United States and Germany, 55 AM. J. COMP. L. 493 (2007) (presenting an empirical comparison of the practice and treatment of undercover policing in the United States and Germany).
77. NAT'L COMM'N ON TERRORIST ATTACKS UPON THE U. S., THE 9/11 COMMISSION REPORT 76-80, 86-93 (2004), available at http://www.911commissio.gov/report/ 911Reportpdf [hereinafter 9/11 Commission Report].
78. Katz v. United States, 389 U. S. 347 (1967).
79. Id. at 358 n. 23. When Congress acted the following year to pass Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, §§ 801-804, 82 Stat. 197, 211-25
80. (codified at 18 U. S. C. §§ 2510-2520 (1968)), it also explicitly disclaimed any position on the role of the Fourth Amendment in electronic surveillance designed for intelligence gathering.
81. See id. § 2511 (3) (amended 1978) ("Nothing contained in this chapter... shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, [or] to obtain foreign intelligence information deemed essential to the security of the United States....").
82. United States v. U. S. Dist. Court (Keith), 407 U. S. 297, 309 (1972) (quoting the affidavit provided to the Court by the U. S. Attorney General). The Court recognized, however, the ways in which criminal investigation and intelligence diverge, including that the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government's preparedness for some possible future crisis or emergency-[Thus,] Congress may wish to consider protective standards for [domestic security surveillance] which differ from those already prescribed for specified crimes in Title HI.
83. Id. at 322.
84. Id. at 308. Although this Article is about domestic intelligence in the sense of intelligence learned domestically and pertaining to the prevention of acts of terror on American soil, much of the intelligence I discuss would technically qualify as foreign intelligence under Keith. More generally, commentators and intelligence professionals have questioned the utility of the domestic/foreign intelligence distinction in light of the emergence of international terrorism as a leading national security threat. See, e.g., 9/11 COMMISSION REPORT, supra note 41, at 400-01 (calling for "unifying strategic intelligence and operational planning... across the foreign-domestic divide"). Tellingly, President Obama recently merged the White House Homeland Security Council, which was created during the previous administration and which focused exclusively on domestic issues, with the National Security Council.
85. See Helene Cooper, in Security Shuffle, White House Merges Staffs, N. Y. TIMES, May 27, 2009, at A13 (noting the statement of President Obama's national security advisor that "terror around the world doesn't recognize borders").
86. 50 U. S. C. § 1804 (a) (6) (A) (2006).
87. See, e.g., U. S. DEP'T OF JUSTICE, LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT (Jan. 19, 2006), available at http://www.usdoj.gov/opa/whitepaperonnsalegalauthoritiespdf (arguing that the TSP was consistent with prevailing constitutional and statutory law).
88. in addition to the uncertain status of intelligence in American constitutional law, the status of domestic intelligence under international law is itself hardly clear. Nothing on the order of the strong international norms that pervade other parts of the counterterrorism apparatus-such as the norms against harsh interrogation and detention without due process-can be found in the area of domestic intelligence or of intelligence more broadly. For an interesting attempt to generate an international law of intelligence, see generally Simon Chesterman, The Spy Who Came in from the Cold War: Intelligence and International Law, 27 MICH. J. INT'L L. 1071 (2006) (discussing the status of intelligence under international law).
89. in re Directives to Section 105B of the Foreign Intelligence Surveillance Act, 551 F. 3d 1004, 1012 (FISA Ct. Rev. 2008).
90. Laird v. Tatum, 408 U. S. 1 (1972) (holding that alleged victims of improper government surveillance could not succeed in bringing a claim that the intelligence gathering chilled speech in contravention of the First Amendment);
91. United States v. White, 401 U. S. 745, 752 (1971) (holding that testimony heard by a government agent monitoring a radio transmitter carried by an undercover government informant was not barred by the Fourth Amendment given that "[i]nescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police");
92. Hoffa v. United States, 385 U. S. 293 (1966) (finding no Fourth Amendment violation where incriminating testimony was heard by an undercover government informant in a hotel room).
93. See infra Part II. C. 1 (discussing the A TTORNEY GENERAL'S GUIDELINES).
94. For a provocative attempt to work around this doctrinal gap, see David A. Harris, Law Enforcement and Intelligence Gathering in Muslim and Immigrant Communities After 9/11, 34 N. Y. U. REV. L. & SOC. CHANGE (forthcoming 2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1330023 (calling for negotiated agreements between intelligence and local communities concerning the use of informants).
95. Smith v. Maryland, 442 U. S. 735 (1979), superseded by statute, Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, § 301 (a), 100 Stat. 1848, 1868-72.
96. See, e.g., Christopher Slobogin, Government Data Mining and the Fourth Amendment, 75 U. CHI. L. REV. 317 (2008) (suggesting ways in which Fourth Amendment doctrine might be read to regulate data mining).
97. See, e.g., Katherine J. Strandburg, Freedom of Association in a Networked World: First Amendment Regulation of Relational Surveillance, 49 B. C. L. Rev. 741 (2008) (arguing for the use of First Amendment norms to protect against certain kinds of network analysis).
98. See, e.g., NAT'L RESEARCH COUNCIL, PROTECTING INDIVIDUAL PRIVACY in THE STRUGGLE AGAINST TERRORISTS: A FRAMEWORK FOR PROGRAM ASSESSMENT 44-66 (2008) [hereinafter Protecting Individual Privacy] (proposing a framework to govern the use of data-mining and information-based programs to combat terrorism).
99. See Department of Homeland Security, Office of Intelligence and Analysis, http://www.dhs.gov/xabout/structure/gc-1220886590914.shtm (last visited Mar. 1, 2010) (explaining the role of the DHS and the Office of Intelligence and Analysis in intelligence gathering and analysis).
100. See National Counterterrorism Center, About Us, Strategic Intent, http://www.nctc.gov/about-us/strategic-intent.hrml (last visited Mar. 1, 2010) (describing how the Center works to combat terrorism and share information with other U. S. agencies that are working to prevent terrorist attacks both at home and abroad).
101. See Federal Bureau of Investigation, National Security Branch, http://www.fbi.gov/hq/nsb/nsb.htm (last visited Aug. 17, 2009) (discussing the National Security Service ("NSS") and how it works to combine intelligence gathering and terrorist screening under one senior FBI official who reports to the president).
102. See supra notes 1-14 and accompanying text (discussing the TSP).
103. Some examples of such collaboration are the DHS's Fusion Centers, the FBI-led Joint Terrorism Task Forces, and the Interagency Threat Assessment and Coordination Group. See Information Sharing Environment, Interagency Threat Assessment and Coordination Group, http://www.ise.gov/pages/partner-itacg.html (last visited Mar. 1, 2010). For a critique of how DHS Fusion Centers have operated, see What's Wrong with Fusion Centers, ACLU, Dec. 5, 2007, http://www.aclu.org/privacy/gen/32966pub20071205.html.
104. The participation by state and local agencies in intelligence functions is hardly new. Antiradical "red squads" were, at different points in the twentieth century, standard features of major metropolitan police departments. See RICHARD E. MORGAN, DOMESTIC INTELLIGENCE: MONITORING DISSENT in AMERICA 83-85 (1980) (quoting the common term for local police units that monitored dissent). in the wake of revelations of abusive practices, many of these intelligence programs were effectively shut down in the 1970s and 1980s.
105. See generally Paul G. Chevigny, Politics and Law in the Control of Local Surveillance, 69 CORNELL L. REV. 735 (1984) (discussing the legal response to the use of surveillance tactics in Chicago, Memphis, and New York during the 1970s).
106. See Handschu v. Special Servs. Div., 605 F. Supp. 1384 (S. D. N. Y. 1985)
107. aff'd, 787 F.2d 828 (2d Cir. 1986)
108. modified, 273 F. Supp. 2d 327 (S. D. N. Y. 2003) (granting wider discretion to police following the 9/11 attacks).
109. in 2002, seventeen years after the Handschu decree governing the NYPD's Intelligence Division was entered, the NYPD successfully petitioned the court to relax aspects of the decree. See Handschu, 273 F. Supp. 2d 327. For a general history of the Handschu litigation and consent decree
110. see Jerrold L. Steigman, Note, Reversing Reform: The Handschu Settlement in Post-September 11 New York City, 11 J. L. & POL'Y 745 (2003). The consent decree governing the Chicago Police Department's intelligence work followed a similar trajectory.
111. See generally Alliance to End Repression v. City of Chi., 237 F.3d 799 (7th Cir. 2001) (Posner, J.) (explaining the need to revisit the strictures of the original consent decree).
112. See also Adrian Vermeule, Commentary, Posner on Security and Liberty: Alliance to End Repression v. City of Chicago, 120 HARV. L. REV. 1251 (2007) (discussing the impact of Judge Posner's decision on intelligence gathering).
113. A particularly egregious example of ungoverned subnational intelligence work is supplied by the Maryland State Police, who maintained a database in which groups such as bicycle lane advocates and death penalty opponents were labeled terrorists. See Lisa Rein & Josh White, More Groups Than Thought Monitored in Police Spying, WASH. POST, Jan. 4, 2009, at A1 (discussing the widespread monitoring of advocacy groups engaged in by the Maryland State Police).
114. These include the Inspectors General of the FBI and DOJ, the Attorney General, and the president's Foreign Intelligence Advisory Board.
115. The prominence of the courts and Congress in intelligence governance in some ways depends on the logic of separation of powers, a key feature of American governance.
116. 50 U. S. C. § 1803 (a) (2006).
117. Id. § 1804 (a).
118. See id. § 1801 (b) (l) (C).
119. Dubbed the "lone wolf provision, this part of FISA was added by the Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004, Pub. L. No. 108-458, sec. 6001, § 101 (b) (l), 118 Stat. 3638, 3742.
120. See generally ELIZABETH B. BAZAN, CONG. RESEARCH SERV., REPORT No. RS22011, INTELLIGENCE REFORM and TERRORISM PREVENTION ACT OF 2004: "LONE WOLF" AMENDMENT TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (2004), available at http://www.fas.org/irp/crs/RS22011pdf (discussing the addition of a new definition of "agent of a foreign power" under FISA).
121. For example, in 2007 the FISC entertained over 2300 applications and denied only three. See Letter from Brian A. Benczkowski, Principal Deputy Assistant Attorney Gen., to Richard B. Cheney, President, U. S. Senate 1 (Apr. 30, 2008), available at http://epic.org/privacy/terrorism/2007fisa-ltrpdf. That said, the rate at which FISA applications are approved is comparable to federal approval rates for search warrants more generally.
122. See 2008 ADMIN. OFFICE OF U. S. COURTS WIRETAP REP. 32 tbl. 7, available at http://www.uscourts.gov/wiretap08/contents.html. It appears that the Canadian equivalent of the FISC is just as generous in approving warrant applications as the FISC.
123. See PETER GILL, POLICING POLITICS: SECURITY INTELLIGENCE and THE LIBERAL DEMOCRATIC STATE 170 (1994). Former Attorney General Mukasey rejected the suggestion that the government's nearly flawless record in front of the FISC implies that the DOJ is too timid in approaching the FISC with applications where the presence of probable cause is less than clear.
124. See Letter from Michael B. Mukasey, Attorney Gen., to Raymond W. Kelly, NYPD Comm'r 1-2 (Oct. 31, 2008), available at http://online.wsj.com/public/ resources/documents/WSJ-200811202Kellypdf.
125. See, e.g., Jon D. Michaels, All the President's Spies: Private-Public Intelligence Partnerships in the War on Terror, 96 CAL. L. REV. 901, 963-65 (2008) (calling attention to the benefits that would be derived from adding additional ex ante review by the FISC). As discussed below, telecommunications firms in receipt of directives from the FISC may challenge those directives.
126. As discussed below in Part IV, this narrow focus on ex ante approvals of intelligence warrants was revisited in the 2008 amendments to the FISA statute.
127. It is no accident that the Supreme Court's most significant pronouncements on terrorism issues in the aftermath of 9/11 have all involved challenges to detention. See, e.g., Boumediene v. Bush, 553 U. S. 723 (2008);
128. Hamdi v. Rumsfeld, 542 U. S. 507 (2004). Unlike individuals who fear they are improperly under government surveillance but typically lack definitive proof that that is so, individuals alleging that they are being detained in violation of law know that they are being detained.
129. This hurdle prevented the plaintiffs from being able to litigate the merits of their claims in ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007). With regard to the plaintiffs' breach of privacy claim under the Fourth Amendment, the Sixth Circuit in ACLU held that the plaintiffs lacked standing because they could not make a showing of individual, particularized injury. Id. at 673.
130. See generally Lujan v. Defenders of Wildlife, 504 U. S. 555 (1992) (discussing the constitutional requirements of standing).
131. See, e.g., ACLU, 493 F.3d at 653 ("[T]he plaintiffs do not-and because of the State Secrets Doctrine cannot-produce any evidence that any of their own communications have ever been intercepted by the NSA, under the TSP, or without warrants."). See also id. at 650 n. 2 (explaining the two applications of the state secrets privilege).
132. The state secrets doctrine originated in United Slates v. Reynolds, 345 U. S. 1 (1953), in which the Supreme Court held that the U. S. government could block the admission or disclosure of evidence that it asserts must remain a national security secret.
133. The Senate Select Committee on Intelligence ("SSCI"), a direct outgrowth of the celebrated Church Committee, came into being in 1976. The House Permanent Select Committee on Intelligence ("HPSCI") was inaugurated the following year. See SELECT COMM. TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES, U. S. SENATE, FINAL REPORT: INTELLIGENCE ACTIVITIES and THE RIGHTS OF AMERICANS, BOOK II, S. REP. No. 94-755, at 20 (1976), available at http://aarclibrary.org/publib/contents/church/contents- church-reports-book2.htm [hereinafter CHURCH COMMITTEE REPORT] (stating that "[c]lear legal standards and effective oversight and controls are necessary to ensure that domestic intelligence activity does not itself undermine the democratic system it is intended to protect");
134. id. at 294 (reiterating the Committee's position "that the Senate create a permanent intelligence oversight committee");
135. id. at 339 ("The Committee reendorses the concept of vigorous Senate oversight to review the conduct of domestic security activities through a new permanent intelligence oversight committee.").
136. The committees were created after the Church Committee was charged with considering "whether intelligence activities threaten the 'rights of American citizens.'" Id. at 1 (quoting the Senate resolution creating the Church Committee). For an exhaustive history of the relationship between the CIA and Congress, see L. BRITT SNIDER, CIA, THE AGENCY and THE HILL: CIA'S RELATIONSHIP WITH CONGRESS, 1946-2004 (2008) (discussing the evolution of the CIA's relationship with Congress from the creation of the CIA to 2004).
137. A standard term of membership on the SSCI was eight years. JUDY SCHNEIDER, CONG. RESEARCH SERV., REPORT No. RS21908, SENATE SELECT COMMITTEE ON INTELLIGENCE: TERM LIMITS and ASSIGNMENT LIMITATIONS 3 (2004), available at http://www.au.af.mil/au/awc/awcgate/crs/rs21908pdf.
138. in the House, no member may serve on the HPSCI for more than four out of six consecutive Congresses, except for the chairman and ranking minority member, who have no term limits. H. R. RULE X (11) (a) (4) (2009), available at http://www.rules.house.gov/ruleprec/lllthpdf;
139. JUDY SCHNEIDER, CONG. RESEARCH SERV., REPORT No. RS22123
140. HOUSE SELECT COMMITTEE ON INTELLIGENCE: LEADERSHIP and ASSIGNMENT LIMITATIONS 2 (2005), available at http://www.fas.org/sgp/crs/intel/RS22123pdf.
141. in 2004, the Senate revisited the structure of its intelligence committee, making a number of changes including the abolition of term limits. See S. Res. 445, 108th Cong. (2004) (enacted);
142. O'Connell, supra note 36, at 1713-14.
143. The current iteration of the rules can be seen at S. DOC. No. 111-3, at 159 (2009). There is no reference to term limits.
144. 9/11 COMMISSION REPORT, supra note 41, at 103.
145. See id. ("The House and Senate select committees on intelligence... have limited authorities.").
146. Oversight of this sort-relying on what Mathew McCubbins refers to as "fire alarms"-typically depends on a public that is positioned to observe official actors and to call attention to their potential abuses. See generally Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 A M. J. POL. SCI. 165, 166 (1984) (setting out two distinct varieties of oversight). Neither condition is met in the case of the sort of secret activities and information that are the stock and trade of intelligence. More generally, owing to the classified nature of much of intelligence, whistle blowing may involve a violation of a criminal statute.
147. See, e.g., Carl Hulse, Pelosi Says She Knew of Waterboarding by Early 2003, N. Y. TIMES, May 15, 2009, at A20 (noting that intelligence committee members were briefed early on concerning the use of waterboarding);
148. Douglas Jehl, Among Those Told of Program, Few Objected, N. Y. TIMES, Dec. 23, 2005, at A21 (noting the lack of protest on the part of intelligence committee members about the TSP).
149. As former counterterrorism official Richard Clarke has explained, "Essentially what happens, you're a member of the Gang of Eight. You get a phone call: 'We have to come and brief you.' They ask you to go to the vault. They brief you. You can't take notes, you can't have your staff there and you can't tell anybody." Hayes, supra note 22 (reporting Richard Clarke's discussion of the shortcomings of the current congressional oversight of intelligence gathering).
150. See O'Connell, supra note 36, at 1662. Thus, DHS intelligence is subject to oversight by Homeland Security Committees, the FBI by the Judiciary Committees, and military intelligence by the Armed Services Committees.
151. See ATTORNEY GEN.'S GUIDELINES FOR DOMESTIC FBI OPERATIONS 8 (Dep't of Justice 2008), available at http://www.usdoj.gov/ag/readingroom/guidelinespdf [hereinafter ATTORNEY G@cen. 's GUIDELINES] (explaining that FBI "investigations... often serve important purposes outside the ambit of normal criminal investigation and prosecution, by providing the basis for, and informing decisions concerning, other measures needed to protect the national security").
152. For the first time, a single set of guidelines covers all aspects of the FBI's investigative work, including criminal investigations, organized crime matters, and domestic intelligence gathering. Id. at 6; Dep't of Justice, Fact Sheet: Attorney General Consolidated Guidelines for FBI Domestic Operations (Oct. 3, 2008), available at http://www.justice.gov/opa/pr/2008/October/08-ag- 889.html. Beginning with the first guidelines issued in the 1970s by Attorney General Edward Levi, there had always been separate procedures covering discrete areas of Bureau activity. ABRAM N. SHULSKY & GARY J. SCHMITT, SILENT WARFARE: UNDERSTANDING THE WORLD OF INTELLIGENCE 149 (3d ed. 2002).
153. ATTORNEY GEN.'S GUIDELINES, supra note 85, at 16. This process of relaxing the criminal standard in the guidelines began during the Reagan years and took on more urgency after the Oklahoma City bombing, when FBI director Louis Freeh concluded that the existing guidelines "would allow the FBI to begin an investigation of a group advocating violence to achieve social or political objectives somewhere short of an imminent violation of federal law, if it was apparent the group had the ability to carry out its objectives." See SHULSKY & SCHMITT, supra note 86, at 156. After 9/11, Attorney General John Ashcroft made further changes.
154. See John Ashcroft, Attorney Gen., Remarks on the Attorney General Guidelines (May 30, 2002) (transcript available at http://www.fas.org/irp/news/ 2002/05/ag053002.html) (stating that after 9/11 "we understood that the mission of American justice and law enforcement had changed" and noting that many FBI agents had expressed "frustrat[ion]" that "internal restrictions", including the investigative guidelines, "hampered our ability to fight terrorism"). Nevertheless, the criminal standard in domestic human intelligence gathering endured to a greater or lesser degree until Attorney General Michael Mukasey definitively renounced it in the most recent version of the guidelines. See supra note 85 and accompanying text.
155. Michael Rolince, New FBI Powers: A Necessary Step for Counterterrorism, WASH. INST. FOR NEAR EAST POL'Y, Oct. 28, 2008, http://www.washingtoninstitute. org/templateC05.php?CID=2951.
156. See, e.g., Simone Ghezzi & Enzo Mingione, Embeddedness, Path Dependency and Social Institutions: An Economic Sociology Approach, 55 CURRENT Soc. 11, 18-19 (2007) (discussing path dependency as a "historically selective process within which some embedded conditions are transformed into specific institutional configurations of development" and "[a]daptation continues to modify the various starting conditions through paths where choices and opportunities are given neither by individual utility nor by predetermined social institutions").
157. By the "criminal standard", 1 mean the position that authority to engage in intelligence gathering is necessarily tied to an allegation of criminal wrongdoing. To speak of the rise (and fall) of the criminal standard is not to suggest, of course, that criminal law itself has been static or that many of the ideas that I associate with the regulatory paradigm are not also characteristic features of contemporary criminal law. See, e.g., Lousie Amoore & Marieke de Goede, Governance, Risk, and Dataveillance in the War on Terror, 43 CRIME L. & SOC. CHANGE 149, 149-50 (2005) (observing that the emergence of risk assessment in counterterrorism is, from the perspective of criminologists, "nothing new");
158. Paul H. Robinson, Commentary, Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice, 114 HARV. L. REV. 1429, 1429-32 (2001) (arguing that criminal justice is increasingly characterized by a preventive, as opposed to a punitive, mission). Indeed, there is irony in that even as domestic intelligence was increasingly defined by a criminal standard, criminal law itself was in the process of evolving in the direction of a regulatory model. in England, for example, as the "fire brigade" approach to policing proved inadequate in the 1980s, fresh emphasis was given to aspects of policing which more closely resemble the security intelligence process... [including] the use of stop and search, detention for purposes of interrogation, and attempts to develop local intelligence systems.... The other main managerial innovation of the 1980s was "policing by objectives" which is based on research, the analysis of information, the establishment of policy objectives, and the collection and evaluation of information relating to the achievement or otherwise of those objectives.
159. GILL, supra note 70, at 211 (footnote omitted).
160. John T. Elliff, The Reform of FBI Intelligence Operations c 31 (1979).
161. Id.
162. See id. at 16;
163. MORGAN, supra note 62, at 27. The General Intelligence Division was formally created by Attorney General A. Mitchell Palmer in 1919, a quarter-century before the CIA came into being. See MORGAN, supra note 63, at 27.
164. For example, in 1936, Hoover instructed field offices to utilize all possible sources of information pertaining to the subversive activities of leftist and fascist groups advocating the overthrow of the U. S. government. See, e.g., WILLIAM W. KELLER, THE LIBERALS and J. EDGAR Hoover: RISE and Fall of a Domestic Intelligence State c 58-59 & nn. 101-02 (1989).
165. See id. (stating that FDR reportedly requested "a broad picture of the [communist and fascist] movement and its activities as may affect the economic and political life of the country as a whole").
166. Memorandum from J. Edgar Hoover, Dir., FBI, to Robert Jackson (Apr. 1, 1941), as quoted in A THAN THEOHARIS, THE QUEST FOR ABSOLUTE SECURITY 53 (2007).
167. See Diane Carraway Piette & Jesselyn Radack, Piercing the "Historical Mists": The People and Events Behind the Passage of FISA and the Creation of the "Wall", 17 STAN. L. & POL'Y REV. 437, 486 (2006). As the Church Committee explained: COINTELPRO is the FBI acronym for a series of covert action programs directed against domestic groups. in these programs, the Bureau went beyond the collection of intelligence to secret action defined to "disrupt" and "neutralize" target groups and individuals. The techniques were adopted wholesale from wartime counterintelligence, and ranged from the trivial (mailing reprints of Reader's Digest articles to college administrators) to the degrading (sending anonymous poison-pen letters intended to break up marriages) and the dangerous (encouraging gang warfare and falsely labeling members of a violent group as policy informers).
168. SELECT COMM. TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES, U. S. SENATE, FINAL REPORT: SUPPLEMENTARY DETAILED STAFF REPORTS OF INTELLIGENCE ACTIVITIES and THE RIGHTS OF AMERICANS, BOOK III, S. REP. No. 94-755, at 3 (1976), available at http://aarclibrary.org/publib/ church/reports/book3/pdf/ChurchB3-0-Titlepdf.
169. The emergence of the criminal standard in FISA-its heavy reliance on the modalities of criminal procedure to govern domestic intelligence gathering-helps to explain the emergence of the so-called FISA wall, by which the FBI's criminal investigations were cordoned off from its intelligence gathering. See Piette & Radack, supra note 97 (discussing the circumstances of the rise of the welldocumented "wall" between intelligence and law enforcement). It was precisely because the intelligence methodology was so similar to the criminal methodology that it seemed perverse to be able to take advantage of the lower thresholds for obtaining specific information through one regime as against the other. See United States v. Truong Dinh Hung, 629 F.2d 908, 916 (4th Cir. 1980) (affirming a district court decision that the FBI had to obtain a warrant when its "primary purpose" shifted from foreign intelligence to criminal investigation);
170. David S. Kris, The Rise and Fall of the FISA Wall, 17 STAN. L. & POL'Y REV. 487, 488 (2006) (noting that intelligence and law enforcement "merge in th[e] area [of investigation]" (footnote omitted)
171. (quoting S. REP. No. 95-701, at 9 (1978))).
172. Although the standard historiography tells that the changes in intelligence practice and culture resulted from rules passed in the wake of the major inquests of the mid-to late-1970s, certain studies by other scholars suggest a different possibility. To these scholars, criminal regulation did not precipitate the change in intelligence methodology but rather followed on the heels of using domestic intelligence as a tool for gathering criminal-type information, especially as to the Ku Klux Klan in the wake of the church bombings. According to John Elliff, some within the FBI felt that the Klan's activities were essentially a law enforcement problem, and that the transfer [of resources from the Intelligence Division to address the problem of the Klan] would dilute the Intelligence Division's major responsibility for dealing with foreign threats. Those who opposed the transfer lost and they traced many of the division's subsequent difficulties to this "substantial enlargement" of its responsibilities. ELLIFF, supra note 91, at 79-80 (footnote omitted). Either way, the period witnessed what a leading scholar has called the FBI's transformation from a "bureau of internal security", with its connotation of a technocratic office, into a political police and what he dubs "a state within a state."
173. KELLER, supra note 94, at 154.
174. See also THEOHARIS, supra note 96, at 221 ("In the immediate aftermath of the Church and Pike committee exposés, Congress appeared ready to enact a charter law.").
175. See ELLIFF, supra note 91, at 29-30, 60. According to Elliff, Levi's commitment to restoration of the criminal standard and to disavowing the intelligence function of the FBI was such that he did not want the guidelines to be referred to as the "Domestic Intelligence Guidelines." See id.
176. See SHULSKY & SCHMITT, supra note 86, at 151 ("The key point in the Levi Guidelines is that investigation of such groups is permitted only when a group (or an individual) is or may be engaged in activities 'which involve or will involve the use of force or violence and which involve or will involve the violation of federal law.' This is the essence of the criminal standard that effectively defines the government's interest in the domestic security area." (quoting the Levi Guidelines)). Specifically, the Levi Guidelines authorized the FBI to collect "information on the activities of individuals, or the activities of groups, which involve or will involve the use of force or violence and which involve or will involve the violation of federal law."
177. ELLIFF, supra note 91, at 61.
178. GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH in WARTIME FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM 555 (2004) (criticizing the tendency to exaggerate foreign threats in order to build up support for executive action). It is noteworthy, perhaps, that Levi and Harlan Fiske Stone were both academic lawyers (and law school deans) naturally suspicious of intelligence operations not tethered to alleged criminal law violations.
179. For example, Elliff (himself a staff member on the Church Committee) expressed the view that [i]t is not enough to say that the FBI shall investigate only where it has credible information or reasonable suspicion that a crime has been or may be committed. Nor is it adequate to say that the FBI shall use certain intrusive techniques only where it or the Attorney General or a court finds reasonable suspicion or probable cause that a criminal enterprise is underway.... If we are to apply the rule of law effectively to the exercise of investigative powers, our thinking must go beyond the criminal laws and beyond procedures linked to the criminal law by such shorthand terms as reasonable suspicion or probable cause. The FBI has been told what it should not do-that is, investigate without reasonable suspicion of criminal activity-but it has not been told what it should concentrate on doing. There must be a more systematic and principled analysis of where and why domestic security and foreign counterintelligence investigations are necessary.
180. E LLIFF, supra note 91, at 35.
181. Press Release, U. S. Dep't of Justice, Briefing with Department Officials on Consolidated Attorney General Guidelines (Sept. 13, 2008), available at http://justice.gov/opa/pr/2008/September/08-opa-814.html.
182. Richard A. Posner, Privacy, Surveillance, and Law, 75 U. CHI. L. Rev. 245, 259 (2008). As I go on to argue in the next part, the source of conceptual confusion is not necessarily the grip that our legalistic culture has on us so much as it is the unexamined assumption that criminal law, rather than administrative law, ought to be at the forefront of intelligence governance.
183. See AMY B. ZEGART, SPYING BLIND: THE CIA, THE FBI, and THE ORIGINS OF 9/11, at 121-27 (2007). See also id. at 127-55 (examining the intelligence failures by the FBI in the lead-up to 9/11 and criticizing as inadequate attempts to address these problems).
184. The Supreme Court has recognized a similar distinction when it comes to the constitutionality of roadblocks under the Fourth Amendment. Suspicionless stops that are motivated primarily by concerns about highway safety and border integrity, rather than by a general interest in criminal investigation and prosecution, may pass muster under the Fourth Amendment. Compare United States v. Martinez-Fuerte, 428 U. S. 543 (1976) (upholding the constitutionality of a vehicle checkpoint where suspicionless searches for illegal aliens were performed based, in part, on the checkpoint's border control function)
185. with City of Indianapolis v. Edmond, 531 U. S. 32 (2000) (finding that an antinarcotics roadblock violated the Fourth Amendment on the grounds that its purpose was to enforce criminal law and therefore that some individualized suspicion was required). The Court's "primary purpose" test announced in Edmond
186. see Edmond, 531 U. S. at 40, (unwittingly) echoes a line of cases that interpreted and gave meaning to the FISA wall
187. see, e.g., United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980).
188. See SHULSKY & SCHMITT, supra note 86, at 156 ("Asserting the theoretical argument against the criminal standard for domestic security investigations is much easier than determining what could replace it.").
189. See supra note 26.
190. See, e.g., COMM'NON LIFE SCIS., NAT'L RESEARCH COUNCIL, RISK ASSESSMENT in THE FEDERAL GOVERNMENT: MANAGING THE PROCESS 3, 19-20 (1983) (commonly known as the "Red Book") (defining risk assessment as potentially entailing four major steps: hazard identification, doseresponse assessment, exposure assessment, and risk characterization).
191. COMM'NON LIFE SCIS., NAT'L RESEARCH COUNCIL, SCIENCE and JUDGMENT in RISK ASSESSMENT 4 (1994) [hereinafter SCIENCE and JUDGMENT]. Although OIRA has gestured in the direction of providing some standardization across different types of risk assessments, "[i]t remains the case... that overseeing the uncertainty in risk assessments is largely outside its purview."
192. Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 COLUM. L. REV. 1260, 1297 (2006).
193. Kevin D. Lafferty, Katherine F. Smith & Elizabeth M. P. Madin, The Infectiousness of Terrorist Ideology: Insights from Ecology and Epidemiology, in NATURAL SECURITY: A DARWINIAN APPROACH TO A DANGEROUS WORLD 186, 188 (Raphael D. Sagarin & Terence Taylor eds., 2008).
194. My argument that domestic intelligence resembles risk assessment is pitched at a high level of generality. Inevitably, in practice the analogy is imperfect, notably in the sense that intelligence-cumrisk-assessment threatens to interfere with basic rights in a way that risk assessments in the environmental context, for example, do not. That said, this problematic feature of intelligence is also present in public health surveillance. For a provocative theory that epidemiology can shed light on counterterrorism intelligence
195. see id. at 188-90. See also Paul Stares & Mona Yacoubian, Op-Ed, Terrorism as Virus, WASH. POST, Aug. 23, 2005, at A15.
196. See Steven Shavell, Liability for Harm Versus Regulation of Safety, 13 J. LEGAL STUD. 357 (1984) (comparing a tort-based model and a regulation-based model for addressing risk).
197. Angelo, supra note 26, at 1559. See also SCIENCE and JUDGMENT, supra note 111, at 28 ("Risk management is the term used to describe the process by which risk-assessment results are integrated with other information to make decisions about the need for, method of, and extent of risk reduction. ").
198. The adoption of this approach in preemptive counterterrorism-from the prosecution of preemptive wars to the use of preemptive detention-has proved controversial. See Stern & Wiener, supra note 38, at 395.
199. ATTORNEY GEN.'S GUIDELINES, supra note 85, at 17. The absence of a need for criminal predication in order to commence and carry out a threat assessment was also brought out during a recent colloquy between Senator Jay Rockefeller and FBI General Counsel Valerie Caproni. Senator Rockefeller asked whether the new guidelines authorized surveillance of "a law-abiding U. S. citizen or a permanent resident all day or for many days without grounds to believe that the person followed is engaged in activities that endanger the national security." The FBI General Counsel replied that "[i]t could."
200. Attorney General Guidelines for FBI Criminal Investigations, National Security Investigations, and the Collection of Foreign Intelligence: Hearing Before the S. Select Comm. on Intelligence, 11 0th Cong. 16 (2008) [hereinafter Attorney General Guidelines Hearing] (testimony of Valerie Caproni, General Counsel, FBI), available at http://intelligence.senate.gOv/pdfs/l 10846pdf. in another colloquy with Senator Russ Feingold, Caproni explained that while criminal predication was not necessary to carry out a threat assessment, the FBI "would only be collecting information if there is an authorized purpose... legitimately within the parameters of [the threat] assessment."
201. Id. at 30 (testimony of Valerie Caproni, General Counsel, FBI).
202. See William C. Banks & M. E. Bowman, Executive Authority for National Security Surveillance, 50 AM. U. L. REV. 1, 7 (2000) (noting that while criminal law generally takes aim at social evils that "primarily harm[] individuals", domestic intelligence seeks to anticipate broader and graver threats that "strike[] at the very foundation of... society" and thus that it is "increasingly doubtful that a remedy that regulates criminal investigations will adequately serve similar objectives in national security investigations" (footnotes omitted)).
203. Press Release, supra note 104 (quoting a senior FBI official's statement regarding the proposed ATTORNEY GENERAL'S GUIDELINES). The FBI official's observation followed this insight: To be an intelligence-driven agency, what we need to do is to be asking questions. What is the threat within your environment?... So let's say, today or a year ago or two years ago, if the question was asked of a special agent in charge of an FBI field office, "Do you have a problem of theft of high technology and theft of classified information within your domain?" Their answer would be, "Our Chinese squad has three cases against Chinese nationals." Okay, so we've got a little bitty problem. and some other SAC would say[,] "We've got 50 cases." So they've got a bigger problem. Wrong. One has three cases, one has 50 cases. You don't have a clue the size of the problem in either office, because they could be missing things. Right? Because they have to have something to open the case, but if... nobody tells them anything, they don't have the predication necessary to open the case, so they don't know they've got a threat.
204. Id. (quoting a senior FBI official's statement regarding the proposed ATTORNEY GENERAL'S GUIDELINES).
205. The new guidelines explicitly empower the FBI to develop overviews and analyses of threats to and vulnerabilities of the United States and its interests in areas related to the FBI's responsibilities.... The[se] overviews and analyses... may encompass present, emergent, and potential threats and vulnerabilities, their contexts and causes, and identification and analysis of means of responding to them. ATTORNEY GEN.'S GUIDELINES, supra note 85, at 29. Furthermore, "[t]he FBI is authorized to conduct research, analyze information, and prepare reports and assessments concerning matters relevant to authorized FBI activities."
206. Id. Cf. SECOND SPECIAL SENATE COMM. ON TERRORISM & PUB. SAFETY, CAN., TERRORISM 41 tbl. (1989) (showing that Canada's dedicated domestic intelligence service CSIS "is not oriented towards gathering evidence to support criminal prosecutions. CSIS' purpose is essentially intelligence and information gathering for risk assessment").
207. See Lafferty et al., supra note 112, at 188-90 (discussing how to apply health surveillance techniques as a method for combating risks associated with contracting the disease in question-in the case of counterterrorism efforts, the danger of the spread of a harmful ideology).
208. See also Gail R. Janes et al., Descriptive Epidemiology: Analyzing and Interpreting Surveillance Data, in PRINCIPLES and PRACTICE OF PUBLIC HEALTH SURVEILLANCE 12 (Steven M. Teutsch & R. Elliot Churchill eds., 2d ed. 2000);
209. Denise Koo & R. Gibson Parish II, The Changing Health-Care Information Infrastructure in the United States: Opportunity for a New Approach to Public Health Surveillance, in PRINCIPLES and PRACTICE OF PUBLIC HEALTH SURVEILLANCE, supra, at 76;
210. Raul A Romaguera, Robert R. German & Douglass N. Klaucke, Evaluating Public Health Surveillance, in PRINCIPLES and PRACTICE OF PUBLIC HEALTH SURVEILLANCE, supra, at 176;
211. Stares & Yacoubian, supra note 113.
212. See Google.org, Flu Trends: How Does This Work?, http://www.googIe.org/ about/flutrends/how.html (last visited Mar. 1, 2010) ("Google Flu Trends uses aggregated Google search data to estimate current flu activity around the world in near real-time.").
213. See also Posting of the Editorial Board to the Board, http://theboard.blogs.nytimes.eom/2008/l 1/12/google-flu-trends-when-the- government-knows-youre-sick/(Nov. 12, 2008, 11:56 EST) ("Google says that Google Flu Trends will protect people's privacy by providing only aggregate data. That's true up to a point. If you and your neighbors all do searches for flu-related symptoms, you might be tipping the government off that you are a problem area. That aggregated data could conceivably lead the government to take 'control measures,' like a quarantine, aimed at your area.").
214. By analogy to Kenneth Culp Davis's famous dichotomy in administrative law, the intelligence being sought more closely resembles legislative facts than adjudicative facts. See 2 KENNETH CULP DAVIS & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 10.5 (3d ed. 1994). That said, it is true that risk assessments may be conducted on a more tactical level.
215. See, e.g., Henry H. Willis, Using Risk Analysis to Inform Intelligence
216. Jules Lobel, The Preventive Paradigm and the Perils of Ad Hoc Balancing, 91 MINN. L. REV. 1407, 1407, 1414, 1424 (2007). Attorney General John Ashcroft also termed this approach the "paradigm of prevention. "
217. Id. at 1407.
218. Id. at 1418.
219. See also Kate Martin, Domestic Intelligence and Civil Liberties, SAIS REV., Winter-Spring 2004, at 7, 13 (drawing attention to the "disturbing specter" of a proactive approach to intelligence bound up with aggressive intervention, including predator strikes, renditions, and indefinite detentions).
220. Not only does the risk-assessment model not furnish the basis for unchecked preemptive interventions, it may actually reduce the (perceived) need for preemptive interventions. It may be, in other words, that the more comprehensive a risk assessment, the less likely that the government is to feel compelled to intervene because of a sense of uncertainty about the underlying risk. It is useful to recall in this regard that J. Edgar Hoover opposed the internment of Japanese-Americans during World War II, believing the intelligence capabilities of the FBI to be sufficient to locate any risk that might emerge from that community without recourse to a strategy of mass detention. The matter was discussed as part of a colloquy surrounding the passage of the so-called Non-Detention Act. A sponsor of the Act, Congressman Thomas Railsback, reminded an opponent of the bill, Congressman Richard Howard Ichord, that "J. Edgar Hoover was opposed to detention camps, because he thought he had sufficient personnel to keep all these potential saboteurs under surveillance, and that they could prosecute the guilty in accordance with due process-" 117 CONG. REC. H31. 552 (daily ed. Sept. 13, 1971).
221. in addition to the distinction between intelligence as risk assessment and interventions, I would insist on carefully drawn "use restrictions" on information learned as part of a domestic intelligence program to see to it that, as Ben Wittes has put it, "[w]hat happens in counterterrorism stays in counterterrorism." See BENJAMIN WITTES, LAW and THE LONG WAR: THE FUTURE OF JUSTICE in THE AGE OF TERROR 252 (2008).
222. Cf. Richard A. Clarke, Targeting Terrorists, Wall St. J., July 18, 2009, at W1 (recommending that the CIA focus on intelligence gathering and analysis and not be "tied to, prejudiced by, [or]... tainted with a connection to covert action"). The distinction I draw between risk assessment and interventions is consistent with the practice of domestic intelligence agencies in the United Kingdom, France, Canada, and Australia, none of which possesses the power of arrest or detention.
223. See PETER CHALK & WILLIAM ROSENAU, CONFRONTING THE "ENEMY WITHIN": SECURITY INTELLIGENCE, THE POLICE, and COUNTERTERRORISM in FOUR DEMOCRACIES, at xii (2004) (describing the domestic intelligence agencies in the United Kingdom, France, Canada, and Australia).
224. To say that risk assessment seeks aggregative data is not to suggest that domestic intelligence is or ought to be indiscriminate in the information it seeks. As I argue below, a mature governance regime employing rationality review can help police avoid the tendency of intelligence to confuse the need for aggregative data with the need to cast an ever-wider intelligence net.
225. Cf. Wendy K. Mariner, Medicine and Public Health: Crossing Legal Boundaries, 10 J. HEALTH CARE L. & POL 'Y 121 (2007) (comparing public health to individualized medical care).
226. The risk-assessment model moves domestic intelligence in the direction of "positive intelligence", which Sherman Kent defines as "all the things you should know in advance of initiating a course of action. " SHERMAN KENT, STRATEGIC INTELLIGENCE FOR AMERICAN WORLD POLICY 210 (1949). Kent distinguishes between "positive intelligence" and "security intelligence", which he defines as "the intelligence behind the police function. "
227. Id. at 209. He captures the difference between the two forms of intelligence by reference to an example: A policeman, alerted by security intelligence, will protect your house against burglars, or, if the house is robbed, he will use security intelligence to catch the burglars. But this policeman will not warn you when there is to be a boost in the price of beef, nor will he tell you when your bank is going to fail. This is not his job. To get this kind of protective knowledge, you will have to patronize some sort of positive intelligence service.
228. Id. at 211. My contention is that domestic intelligence has emerged as a form of positive intelligence, having been limited to security intelligence status during the previous generation. Kent is closely associated with the perspective that intelligence collection and analysis ought to be hermetically sealed off from one another, a view that was institutionalized in the form of the sharp divide between the CIA's directorates of intelligence and operations. This account has been criticized recently.
229. See, e.g., PHILIP BOBBITT, TERROR and CONSENT: THE WARS FOR THE TWENTY-FIRST CENTURY 333-35 (2008) (arguing against Kent's excessively scientistic conception of intelligence).
230. See also DICKEY, supra note 20, at 148-49 (quoting a senior NYPD official as stating, "You don't have that in other intelligence agencies[-]... where the analysts and operators work side by side"). While these criticisms have a great deal of force in practice, Kent is surely correct that it makes sense to distinguish between what he calls a "surveillance operation", or the "ways by which the contemporary world is put under close and systematic observation", and a "research operation", or the "attempts to establish meaningful patterns out of what was observed in the past and attempts to get meaning out of what appears to be going on now."
231. KENT, supra, at 4 (emphases omitted). Both are part of domestic intelligence as risk assessment.
232. Robert S. Mueller III, Dir., FBI, Speech at the National Press Club (May 16, 2008) (transcript available at http://www.fbi.gov/pressrel/speeches/ mueller051608.htm).
233. See, e.g., PROTECTING INDIVIDUAL PRIVACY, supra note 56, at 241 (noting that TIA was intended to "develop technology that could discern event and transaction patterns of interest and then identify individuals of interest on the basis of the events and transactions in which they participated"). in a hearing focused on modernizing FISA, Senator Russ Feingold had a dialogue with Director of National Intelligence J. Michael McConnell, during which Feingold reminded McConnell that he had previously commented to the House Intelligence Committee that "the bulk collection of all communication originating overseas... 'would certainly be desirable if it was physically possible to do so,' but that bulk collection of communications with Americans is not needed."
234. Strengthening FISA: Does the Protect America Act Protect Americans' Civil Liberties and Enhance Security?: Hearing on S. 1927 Before the S. Comm. on the Judiciary, 11 0th Cong. 32 (2007) (testimony of Admiral J. Michael McConnell, Director of National Intelligence). Feingold proceeded to ask McConnell whether "bulk collection of all communications originating overseas, including communications of people in the United States" was '"authorized by the [new FISA law], '" to which McConnell responded that it would be authorized "[s]o long as it is foreign, in a foreign country for foreign intelligence purposes."
235. Id. at 32-33 (testimony of Admiral J. Michael McConnell, Director of National Intelligence).
236. See supra Part II. A.3. Recall that the Supreme Court has held that the Fourth Amendment does not protect individuals against the disclosure of information that has been turned over to third parties.
237. See, e.g., Smith v. Maryland, 442 U. S. 735 (1979), superseded by statute, Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, § 301 (a), 100 Stat. 1848, 1868-72;
238. United States v. Miller, 425 U. S. 435 (1976), superseded in part, Right to Financial Privacy Act of 1978, Pub. L. No. 95-630, 92 Stat. 3697.
239. See Ferenc Jordán, Network Analysis Links Parts to the Whole, in NATURAL SECURITY, supra note 12, at 240, 240.
240. See PROTECTING INDIVIDUAL PRIVACY, supra note 56, at 46 (proposing a framework for evaluating intelligence programs that asks two sets of questions: "First, is an information-based program effective or likely to be effective in achieving its intended goal-in short, does it work? Second, does the program comply with the law and reflect the values of society, especially concerning the protection of data subjects' civil liberties?").
241. Klaidman, supra note 6.
242. A recent report suggests that the NSA has recently stopped collecting certain metadata in response to concerns raised by members of the FISC. See Ellen Nakashima, NSA Stops Collecting Some Data: Officials Trying to Resolve Concerns Raised by Court, WASH. POST, Apr. 19, 2010, at A6.
243. Cf. CLIFFORD GEETRZ, Thick Description: Toward an Interpretive Theory of Culture, in THE INTERPRETATION OF CULTURES 3 (1973) (examining the application of this type of technique in cultural anthropology). in some cases, interviewing one individual may give rise to a great deal of strategically valuable intelligence.
244. See MORGAN, supra note 62, at 93 (stating that the use of undercover officers and paid informants is "the most productive means of gathering intelligence information"). To generalize from this observation, not all aggregative intelligence is strategic (as when volumes of information are analyzed to turn up a trace of a known subject), and not all strategically valuable intelligence is aggregative.
245. The term famously belongs to Clifford Geertz. See generally GEERTZ, supra note 139.
246. in the intelligence context, for example, a paid undercover informant can serve a valuable function as a "vacuum cleaner of information. " See MORGAN, supra note 62, at 93 (quoting a Church Committee finding).
247. BRITISH HOME OFFICE, APACS TECHNICAL CONSULTATION: SERIOUS CRIME and PROTECTION 50 (2007), available at http://police.homeoffice.gov. uk/publications/police-reform/2007-12-07-APACS-Technical-52835pdf?view=Binary (defining "Rich Picture" in a template for receiving performance data).
248. See also HM GOV'T, THE UNITED KINGDOM'S STRATEGY FOR COUNTERING INTERNATIONAL TERRORISM 65 (2009), available at http://security.homeoffice.gov. uk/newspublications/publication-search/contest/contest-strategy/("Under [Rich Picture,] information is collected on issues related to violent extremist activity in local communities."). Settling on the correct unit of analysis for Rich Picture may be challenging. First of all, at the conceptual level, "[t]he global Salafi jihad has a very fuzzy boundary... [which] raises... epistemological issues on a group and individual level." MARK SAGEMAN, UNDERSTANDING TERROR NETWORKS 151 (2004). Furthermore, the nature of the current threat mandates a reconsideration of the familiar distinctions between domestic and overseas threats. As NYPD deputy commissioner for counterterrorism Richard Falkenrath has observed, "Despite the success of U. S. overseas efforts in degrading al-Qaeda as an organization, its powerful radical influence on the City's younger generation-especially among its sizeable Muslim community-continues to pose a serious threat from within. "
249. POSNER, supra note 32, at 146. The debate about the viability of the foreign/domestic distinction in national security threats has been going on for over a generation.
250. See, e.g., Lewis F. Powell, Jr., Civil Liberties Repression: Fact or Fiction?-"Law-Abiding Citizens Have Nothing to Fear", RICH. TLMES-DLSPATCH, Aug. 1, 1971
251. reprinted in Nominations of William H. Rehnquist and Lewis F. Powell, Jr.: Hearings Before the S. Comm. on the Judiciary, 92d Cong. 213-14 (1971) (observing that "[tjhere may have been a time when a valid distinction existed between external and internal threats" but that "such a distinction is now largely meaningless"). It is ironic that Justice Powell shortly thereafter authored the Court's opinion in Keith, in which precisely the foreign/domestic distinction was found to be of the essence.
252. See Trevor W. Morrison, The Story of 'United States v. United States District Court (Keith): The Surveillance Power, in PRESIDENTIAL POWER STORIES 287, 317 (Christopher H. Schroeder & Curtis A. Bradley eds., 2009) (offering different explanations for Justice Powell's apparent shift). There has already been the suggestion in congressional testimony that the FBI engages in this sort of surveillance more vigorously in certain communities than others. As Senator Feingold observed in a recent hearing, a senior FBI official made specific reference to collecting intelligence in Dearborn, Michigan, "which, of course, has a large Arab-American and Muslim community."
253. Attorney General Guidelines Hearing, supra note 117, at 30 (testimony of Valerie Caproni, General Counsel, FBI).
254. Robert S. Mueller III, Dir., FBI, Statement at the Hearing Before the Subcommittee on Science of the House Committee on Appropriations, the Departments of State, Justice, and Commerce, and Related Agencies of the 109th Congress (Sept. 14, 2006) (transcript available at http://www.fbi.gov/congress/ congress06/mueller091406.htm).
255. Scott Shane & Lowell Bergman, F. B. I. Struggling to Reinvent Itself to Fight Terror, N. Y. TIMES, Oct. 10, 2006, at A6.
256. As Amy Zegart has reportedly stated, "Domain management has been portrayed by the bureau as a broad analytic approach, not specific data mining activities-It is a methodology to determine what is known about a problem, develop indices to measure it, and take steps to close knowledge gaps."
257. Jeff Stein, FBI Hoped to Follow Falafel Trail to Iranian Terrorists Here, CQPOL., Nov. 2, 2007, http://www.cqpolitics.com/wmspage.cfm?docID=hsnews- 000002620892. As part of the project, it was reported that "the FBI sifted through customer data collected by San Francisco-area grocery stores in 2005 and 2006, hoping that sales records of Middle Eastern food would lead to Iranian terrorists."
258. Id.
259. Id. (stating, with regards to domain management's ability to estimate the number of Hamas or Hezbollah members in the United States, "[W]ho knows?").
260. RICHARD K. BETTS, ENEMIES OF INTELLIGENCE: KNOWLEDGE and POWER in AMERICAN NATIONAL SECURITY 54 (2007).
261. ROB JOHNSTON, CIA, ANALYTIC CULTURE in THE U. S. INTELLIGENCE COMMUNITY: AN ETHNOGRAPHIC STUDY 17 (2005), available at http://www.fas.org/irp/cia/ product/analyticpdf (emphasis omitted).
262. Id. at 19.
263. See, e.g., id. at 43 ("The practice of medicine has been revolutionized by the sciences that underpin its workings. Intelligence analysis has not experienced that revolution. Unlike medicine, the basic sciences that underpin intelligence are the human sciences, which are considerably more multivariate and more difficult to control.");
264. Shane & Bergman, supra note 144 (stating that "FBI culture still respects door-kicking investigators more than desk-bound analysts sifting through tidbits of data");
265. Gregory F. Treverton, Risk and Riddles: The Soviet Union Was a Puzzle, Al Qaeda Is a Mystery, Why We Need to Know the Difference, SMITHSONIAN, June 2007, at 98 ("Th[e] change in mission [from law enforcement to intelligence] requires an enormous change in organizational culture. For the puzzles of law enforcement, the measures of effectiveness are pretty clear-you can count the suspects collared and bad guys convicted. Terrorists, however, may commit but one crime, and by the time they do, it is too late. That scarcity of 'collars' is a main reason why, rhetoric aside, counterterrorism was not a marquee FBI mission before 9/11.").
266. See generally OFFICE OF INSPECTOR GEN., U. S. DEP'T OF JUSTICE, AUDIT REPORT 07-30, FOLLOW-UP AUDIT OF THE FEDERAL BUREAU OF INVESTIGATION'S EFFORTS TO HIRE, TRAIN, and RETAIN INTELLIGENCE ANALYSTS (2007) (discussing how the FBI has made improvements in the analysis of intelligence and making recommendations for further improvements). A 2008 memorandum for heads of departments states that "[f]urther enhancement of the FBI's intelligence analysis capabilities and functions has been recognized consistently as a key priority in the legislative and administrative reform efforts following the September 11, 2001, terrorist attacks." Memorandum from the Attorney Gen. to the Heads of Dep't Components 3-4 (Sept. 29, 2008), available at http://www.usdoj.gov/ag/ readingroom/guidelines-memopdf.
267. GILL, supra note 70, at 210 (footnote omitted).
268. David Omand, Reflections on Secret Intelligence, in THE NEW PROTECTIVE STATE: GOVERNMENT, INTELLIGENCE and TERRORISM 97, 111 (Peter Hennessy ed., 2007).
269. Cf. Grodsky, supra note 26, at 177 (arguing that, in the context of assessing health risks to individuals with certain genetic predispositions, "society must decide when, in the continuum from exposure to disease, early indicators of future harm are sufficiently predictive to qualify as harms in themselves").
270. Lafferty et al., supra note 112, at 200 (citing terrorism expert Rohan Gunaratna).
271. Radicalization theory, for example-which posits that extremism results from moral feeling being transformed by social patterns-is in its intellectual infancy. See Cass R. Sunstein, Misery and Company, NEW REPUBLIC, Oct. 2, 2008, at 39 (reviewing MARC SAGEMAN, LEADERLESS JLHAD: TERROR NETWORKS in THE TWENTY-FIRST CENTURY (2008)).
272. I owe this felicitous idea to veteran policymaker and intelligence expert Philip Zelikow.
273. Jody Freeman, The Private Role in Public Governance, 75 N. Y. U. L. REV. 543, 545-46 (2000) (footnote omitted).
274. See Richard H. Pildes & Cass R. Sunstein, Reinventing the Regulatory State, 62 U. CHI. L. REV. 1, 40 (1995) (arguing for the centrality of trust to effective administrative regulation). Pildes and Sunstein go on to suggest that Trust is important to the regulatory process in at least three ways. First, levels of trust shape public knowledge about risk. Second, levels of trust influence the ability of regulators to communicate effectively about risk. Finally, public trust is critical to public acceptance of regulatory proposals for dealing with risk. Id. in the intelligence context, all three aspects of trust, in turn, depend on the ability of the intelligence apparatus to become more transparent, notwithstanding its powerful tendency to cloak itself in secrecy. Id.
275. See, e.g., Exec. Order No. 12, 866, 58 Fed. Reg. 51, 735 (Sept. 30, 1993) (endorsing the essential features of Executive Order 12, 291);
276. Exec. Order No. 12, 291, 46 Fed. Reg. 13, 193 (Feb. 17, 1981). As for legislative initiatives accepting cost-benefit analysis
277. see, for example, the Toxic Substances Control Act, Pub. L. No. 94-469, § 6 (a), 90 Stat. 2003, 2020-21 (1976)
278. (codified as amended at 15 U. S. C. § 2605 (a) (2006)) (authorizing administrative action if there is a "reasonable basis")
279. and the Federal Environmental Pesticide Control Act of 1972, Pub. L. No. 92-516, sec. 3, § 3, 86 Stat. 973, 979-82
280. (codified as amended at 7 U. S. C. § 136a (a) (2006)) (amending the Federal Insecticide, Fungicide, and Rodenticide Act of 1947) (authorizing administrative regulation to prevent "unreasonable adverse effects on the environment"). For a brief history of cost-benefit analysis in the regulatory state
281. see Robert W. Hahn & Cass R. Sunstein, A New Executive Order for Improving Federal Regulation? Deeper and Wider Cost-Benefit Analysis, 150 U. PA. L. REV. 1489, 1505-10 (2002).
282. Although cost-benefit analysis per se is frequently-and perhaps ideally-thought to consist of a pure comparison of monetized costs with monetized benefits, cost-benefit analysis can also be used to describe a comparison of heterogeneous values. See Richard A. Posner, Cost Benefit Analysis: Definition, Justification, and Comment on Conference Papers, 29 J. LEGAL STUD. 1153, 1153-56 (2000). I use rationality review throughout this discussion as shorthand to refer, not only to cost-benefit analysis itself, but also to other related methods of evaluating government policies or actions, such as risk-cost analysis and cost effectiveness. For an overview of these methods, as well as their challenges and limitations
283. see JOHN L. MOORE, CONG. RESEARCH SERV., REPORT No. 95-760 ENR, COSTBENEFIT ANALYSIS: ISSUES in ITS USE in REGULATION (1995), available at http://ncseonline.org/NLE/CRSreports/Risk/rsk-4.cfm (describing some of the challenges to applying the cost-benefit analysis in a manner that is cost efficient and produces consistent results).
284. See generally MOORE, supra note 160;
285. W. KIP VLSCUSI, FATAL TRADEOFFS: PUBLIC and PRIVATE RESPONSIBILITIES FOR RISK (1992) (discussing risk valuations, responses to the risk, and how best to regulate risk);
286. RISK VERSUS RISK: TRADEOFFS in PROTECTING HEALTH and THE ENVIRONMENT (John D. Graham & Jonathan Baert Wiener eds., 1995) (presenting arguments for how to treat risk minimization holistically where measures to avoid risk entail risks of their own).
287. See, e.g., Amartya Sen, The Discipline of Cost-Benefit Analysis, in COST-BENEFIT ANALYSIS: LEGAL, ECONOMIC, and PHILOSOPHICAL PERSPECTIVES 95 (Matthew D. Adler & Eric A. Posner eds., 2000). As Sen notes, "It is indeed perfectly possible for someone to accept the foundational outlook of cost-benefit analysis and yet reject one or more of the requirements imposed by the structural demands, evaluative indifferences, and market-centered valuation that characterize [its] mainstream applications."
288. Id. at 97.
289. See also Martha C. Nussbaum, The Costs of Tragedy: Some Moral Limits of Cost-Benefit Analysis, in COST-BENEFIT ANALYSIS, supra, at 169, 193 (noting the dangers of how costs and benefits are weighted under a "willingness-to-pay model" and "defin[ng] cost-benefit analysis in a way that does not entail any particular way of assigning the weightings").
290. For an analysis by supporters of cost-benefit analysis who criticize how it has been operationalized, see RICHARD L. REVESZ & MICHAEL A. LIVERMORE, RETAKING RATIONALITY 9-51 (2008) (arguing that policymakers should redeem cost-benefit analysis from its historical antiregulatory applications).
291. See also Pildes & Sunstein, supra note 158, at 43-48. Cost-benefit detractors point to some of the same biases in application as evidence that cost-benefit analysis itself is inherently flawed.
292. See, e.g., David M. Driesen, Is Cost-Benefit Analysis Neutral?, 77 U. COLO. L. REV. 335 (2006).
293. REVESZ & LIVERMORE, supra note 163, at 11.
294. Pursuant to Executive Order 12, 866, DHS security regulations with an economic impact greater than $100 million are subject to OMB review.
295. See Scott Farrow & Stuart Shapiro, The Benefit-Cost Analysis of Security Focused Regulations, 6 J. HOMELAND SECURITY & EMERGENCY MGMT. 1, 2 (2009).
296. See also JOHN MOTEFF, CONG. RESEARCH SERV., REPORT No. RL32561, RISK MANAGEMENT and CRITICAL INFRASTRUCTURE PROTECTION: ASSESSING, INTEGRATING, and MANAGING THREATS, VULNERABILITIES and CONSEQUENCES (2005) (discussing the use of risk assessment in statutorily mandated DHS decisions of how to protect national infrastructure).
297. Brian A. Jackson, Exploring the Utility for Considering Cost-Effectiveness Analysis of Domestic Intelligence Policy Change, in THE CHALLENGE OF DOMESTIC INTELLIGENCE, supra note 39, at 205.
298. See also MOORE, supra note 160.
299. See Exec. Order No. 12, 866, 58 Fed. Reg. 51, 735, 51, 735 (Sept. 30, 1993) ("Costs and benefits shall be understood to include both quantifiable measures... and qualitative measures-");
300. Jackson, supra note 166, at 205 ("[A] qualitative cost-benefit approach can be useful to discipline thinking and ensure that important policy effects are not being ignored....").
301. See also HENRY H. WILLIS, RAND, CHALLENGES OF APPLYING RISK MANAGEMENT TO TERRORISM SECURITY POLICY 5 (2008), available at htrp://www.rand.org/pubs/ testimonies/2008/RAND-CT310pdf (entered into the record at a June 2008 hearing before a subcommittee of the House Homeland Security Committee
302. see The Goodyear Explosion: Ensuring Our Nation is Secure by Developing a Risk Management Framework for Homeland Security: Hearing Before the Subcomm. on Transportation, Security, and Infrastructure Protection of the H. Comm. on Homeland Security, 110th Cong. 3 (2008)) (arguing that "the notion of a cold, analytic, actuarial risk assessment is largely a myth").
303. A scientific literature has developed that is concerned with the measurement of lowprobability, high-risk events.
304. See, e.g., B. JOHN GARRICK, QUANTIFYING and CONTROLLING CATASTROPHIC RISKS (2008);
305. RICHARD A. POSNER, CATASTROPHE: RISK and RESPONSE (2004). Nevertheless, the use of rationality review for national security-related matters is a generation behind the science of rationality review with respect to environmental regulation
306. see Farrow & Shapiro, supra note 165, at 13, suggesting the need for more careful thought devoted to the issue and its application to the governance of intelligence. For an extremely rough attempt at calculating costs and benefits in terms of security and civil liberties
307. see W. Kip Viscusi & Richard J. Zeckhauser, Sacrificing Civil Liberties to Reduce Terrorism Risks, 26 J. RISK & UNCERTAINTY 99 (2003).
308. See Jackson, supra note 166, at 210-11.
309. See Pildes & Sunstein, supra note 158, at 72 (noting how, instead of using cost-benefit analysis in a vacuum, cost-benefit analysis should be used for regulatory purposes in conjunction with other tools, such as value judgments, to make it a more useful assessment tool).
310. See Hahn & Sunstein, supra note 159, at 1502 (explaining how cost-benefit analysis can be used to overcome emotional and cognitive limitations in understanding risks).
311. POSNER, supra note 32, at 3
312. (quoting OFFICE OF DIR. OF NAT'L INTELLIGENCE, NATIONAL INTELLIGENCE ASSESSMENT: PROSPECTS FOR IRAQ'S STABILITY: A CHALLENGING ROAD AHEAD 4 (2007), available at http://dni.gov/press-releases/20070202-releasepdf).
313. JOHNSTON, supra note 148, at 17. As Johnston explains, "The notion that intelligence operations involve tradecraft, which I define as practiced skill in a trade or art, may be appropriate, but the analytic community's adoption of the concept to describe analysis and analytic methods is not." Id. (emphasis omitted).
314. See id. ("[A]nalysis is neither craft nor art.").
315. See REVESZ & LIVERMORE, supra note 163, at 13
316. ("Cost-benefit analysis can be used to ensure that [agencies'] decisions are based on reasoned analysis and not, for instance, on the unaccountable whim of an official-"). The intuition of intelligence officials, no different from that of any other kind of official, reflects the particular biases derived from their specific training, bureaucratic position, and upbringing. in the words of Gordon Woo, one of the inventors of the "Terrorism Risk Model" used by insurance companies and the government, "Just as the intuition of environmentalists may not provide the best societal solutions to environmental protection, so the intuition of law enforcement personnel may not provide the best overall answer to homeland security." Gordon Woo, The Benefits and Costs of Homeland Security Rules: Comments Prepared for the Office of Management of Budget 1 (Mar. 2003) (unpublished manuscript, available at http://www.whitehouse.gov/omb/inforeg/ 2003report/15pdf). One could say the same thing about intelligence officials. Moreover, the influence of intuition threatens to be particularly acute in the field of terrorism, due to the high degree of informational uncertainty.
317. See Michael Fitzsimmons, The Problem of Uncertainty in Strategic Planning, SURVIVAL, Winter 2006-07, at 131, 132 ("The record of planning for post-war operations in Iraq... decision-makers, in enlisting uncertainty as a rationale for discounting one set of predictions, have fallen prey to overconfidence in their own alternative set of predictions.").
318. Sen, supra note 162, at 99.
319. An emerging literature discusses the role of cognitive bias in intelligence analysis. See, e.g., Jack Davis, Why Bad Things Happen to Good Analysts, in ANALYZING INTELLIGENCE, ORIGINS, OBSTACLES, and INNOVATIONS 157 (Roger Z. George & James B. Bruce eds., 2008);
320. Richard J. Heuer, Jr., PSYCHOLOGY OF INTELLIGENCE ANALYSIS 121-75 (2006).
321. See STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION 11-19 (1993).
322. See generally id. (prescribing technocratic solutions to systematic problems of the administrative state).
323. See, e.g., Eric Schmitt, F. B. I. Agents' Role Is Transformed by Terror Fight, N. Y. TIMES, Aug. 19, 2009, at A1 (quoting intelligence scholar Amy Zegart that in FBI counterterrorism units, "there's more chasing than assessing", suggesting a lack of strategic vision).
324. See IRVING L. JANIS, VICTIMS OF GROUPTHINK: A PSYCHOLOGICAL STUDY OF FOREIGN-POLICY DECISIONS and FIASCOES 8-9 (1967) (describing three conceptual frameworks for how group dynamics affect U. S. foreign policy).
325. See also Paul B. Paulus, Developing Consensus About Groupthink After All These Years, 73 ORG. BEHAV. & HUM. DECISION PROCESSES 362 (1998) (evaluating the development and status of the groupthink theory).
326. See Cass R. Sunstein, Terrorism and Probability Neglect, 26 J. RISK & UNCERTAINTY 121 (2003).
327. See generally Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, in JUDGMENT UNDER UNCERTAINTY: HEURISTICS and BIASES 3, 11-14 (Daniel Kahneman, Paul Slovic & Amos Tversky eds., 1982) (noting several types of cognitive bias).
328. See REVESZ & LIVERMORE, supra note 163, at 9-19 (noting that a properly functioning costbenefit analysis review process would actively draw attention to the areas where there is insufficient regulation, not merely those where there was ostensibly too much regulation).
329. For a compelling typology and analysis of politicization, see Gregory F. Treverton, Intelligence Analysis: Between "Politicization " and Irrelevance, in ANALYZING INTELLIGENCE, supra note 177, at 91.
330. in the words of Secretary of Defense and former CIA director Robert Gates, "The problem of politicization is as old as the intelligence business." Robert M. Gates, Guarding Against Politicization, Remarks Made Before the CIA (Mar. 16, 1992), available at https://www.cia.gov/library/center- for-thestudy-of-intelligence/kent-csi/docs/v36i1a01p-0001.htm.
331. Indeed, rationality review may itself become the occasion for politicization, with politicians either trumpeting a conclusion with which they agree or casting aspersions on a rationality review determination as insufficiently attuned to the threat.
332. See Jackson, supra note 166, at 210-11, 214, 219, 222-24.
333. See, e.g., ERIC A. POSNER & ADRIAN VERMEULE, TERROR in THE BALANCE: SECURITY, LIBERTY, and THE COURTS 274 (2007) (questioning the civil libertarian impulse to engage in "sophisticated second-order arguments" to defeat claims of executive authority in national security).
334. See EYAL ZAMIR & BARAK MEDINA, LAW, ECONOMICS, and MORALITY (forthcoming), available at http://ssnrn.com/abstract=1438052 (defending the consistency of deontological rights and cost-benefit analysis in the counterterrorism setting). Furthermore, as Stephen Holmes and Cass Sunstein have demonstrated, all rights are ultimately associated with a price tag; without a financial commitment to enforcing certain rights-for example, by maintaining an effective court system and enforcement apparatus-rights lose their meaning. They argue that taxes are necessary for a state to protect its citizens because funding is necessary for security measures.
335. STEPHEN HOLMES & CASS R. SUNSTEIN, THE COST OF RIGHTS: WHY LIBERTY DEPENDS ON TAXES 146 (1999) ("A government that enforces and protects rights, moreover, cannot do so unless it channels scarce tax revenues to public uses.... Property rights have costs because, to protect them, the government must hire police officers."). Thus, a purely deontological conception of rights in this area is ultimately of dubious explanatory or practical value.
336. See, e.g., United States v. U. S. Dist. Court (Keith), 407 U. S. 297, 313-14 (1972) ("National security cases... often reflect a convergence of First and Fourth Amendment values not present in cases of 'ordinary' crime-[S]o also is there greater jeopardy to constitutionally protected speech.... The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect 'domestic security.'").
337. See Daniel J. Solove, The First Amendment as Criminal Procedure, 82 N. Y. U. L. REV. 112 (2007) (arguing that the First Amendment must figure in surveillance law);
338. Strandburg, supra note 55, at 747 ("The potential chilling effect due to relational surveillance poses serious risks not only to individual privacy, but to the First Amendment rights to freedom of association and assembly.").
339. Jed Rubenfeld points out that unlike the amendments that follow it, which speak in terms of protecting the individual ("person" or "accused") against the coercive power of the criminal justice system, the Fourth Amendment speaks in terms of protecting the security of "the people."
340. Jed Rubenfeld, The End of Privacy, 61 STAN. L. REV. 101, 119-22, 130-32 (2008). He goes on to observe that "each individual's capacity to have a personal life depends in part on others' having that capacity as well-which is perhaps the decisive reason why the Fourth Amendment's right-holder is collective, rather than singular."
341. Id. at 130-31.
342. Katz v. United States, 389 U. S. 347, 360 (1967) (Harlan, J., concurring).
343. Rubenfeld, supra note 192, at 105-15.
344. Id. at 127.
345. WITTES, supra note 127, at 253. Wittes's judgment may be too harsh.
346. See infra Part IV. B. There is a role for robust judicial review of
347. Cf. TERRORISM, GOVERNMENT, and LAW: NATIONAL AUTHORITY and LOCAL AUTONOMY in THE WAR ON TERROR (Susan N. Herman & Paul Finkelman eds., 2008) (suggesting that an opportunistic embrace of federalism by certain liberal cities and states might offer the strongest structural protections against an aggressive national government).
348. Cynthia Henry, EPA Audit Finds DEP Flawed, PHILA. INQUIRER, Aug. 28, 2009, at B1
349. (discussing how a recent audit of the New Jersey state environmental agency by the federal EPA uncovered the need for substantial improvements). of course, local and state participation in federal intelligence oversight must be sufficiently voluntary to pass muster under the standard set out in Printz v. United States, 521 U. S. 898 (1997).
350. See PROTECTING INDIVIDUAL PRIVACY, supra note 56, at 24 (drawing attention to the absence of proof of the effectiveness of many data-mining programs).
351. They may also promote more "blowback" measures, for example, in community distrust of the government that impedes the ability of intelligence agencies to obtain vital information from the public.
352. See SCHULHOFER, supra note 37, at 66 (describing the naïve "the more intelligence the better" view, which promotes compiling intelligence "as if we had repealed the law of diminishing marginal returns").
353. See Marina Caparini, Controlling and Overseeing Intelligence Services in Democratic States, in DEMOCRATIC CONTROL OF INTELLIGENCE SERVICES: CONTAINING ROGUE ELEPHANTS 3, 8-9 (Hans Born & Marina Caparini eds., 2007). Furthermore, administrative bodies focused exclusively on issues of civil liberties may tend to become marginalized, especially within the intelligence community. The curious fate of the president's Privacy and Civil Liberties Board is a case in point.
354. See Christopher Flavelle, Disappearance of Privacy Board from White House Web Site Raises Questions, ProPublica, July 14, 2009, http://www.propublica. org/ion/changetracker/itern/disappearance-of-privacy-board-fromwhitehouse- website-raises-questions-714.
355. See also Eli Lake, Liberties Oversight Panel Gels Short Shrift, WASH. TIMES, Feb. 2, 2010, at A1 (discussing the criticism against President Obama for not filling positions on the Privacy and Civil Liberties Oversight Board, especially in light of the Christmas Day attack).
356. See infra Part IV. B. Rationality review also paves the way for meaningful judicial review of agency action for compliance with its own mandate.
357. See 5 U. S. C. § 706 (2006) (authorizing a reviewing court to "decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action").
358. Following Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984)
359. courts defer to an agency's statutory interpretation of its organic statute in cases where Congress was silent or ambiguous in drafting the text and where the agency's interpretation is a "permissible construction. " Chevron U. S. A. Inc. v. Natural Res. Def. Council, Inc., 467 U. S. 837, 842-43 (1984).
360. 5 U. S. C. § 706 (2XA).
361. See, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U. S. 29, 40-44, 57 (1983) (holding, in a case in which an agency rescinded a regulation, that under arbitrary and capricious review a court could strike down agency action that was not supported by a "reasoned analysis", which requires that agencies more thoroughly consider relevant facts and alternatives);
362. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971)
363. (holding that arbitrary and capricious review requires courts to examine whether an agency decision was "based on a consideration of the relevant factors and whether there has been a clear error of judgment" (citations omitted)), overruled on other grounds by Califano v. Sanders, 430 U. S. 99 (1977).
364. See generally SEC v. Chenery Corp., 318 U. S. 80 (1943) (requiring agencies to provide and conform to ex ante rationales for their actions).
365. Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D. C. Cir. 1970) ("Assuming consistency with law and the legislative mandate, the agency has latitude not merely to find facts and make judgments, but also to select the policies deemed in the public interest. The function of the court is to assure that the agency has given reasoned consideration to all the material facts and issues. This calls for insistence that the agency articulate with reasonable clarity its reasons for decision, and identify the significance of the crucial facts, a course that tends to assure that the agency's policies effectuate general standards, applied without unreasonable discrimination. " (footnotes omitted)).
366. See supra Part II.
367. As the sustained and costly search for weapons of mass destruction in Iraq long after the initial invasion amply demonstrates, it can be difficult for intelligence agencies to acknowledge that a collection effort has proved fruitless.
368. See Jack Goldsmith, Long-Term Terrorist Detention and Our National Security Court 6-8 (Brookings Inst. Counterterrorism and Am. Statutory Law Series, Paper No. 5, 2009), available at http://www.brookings.edU/~/media/Files/ rc/papers/2009/0209-detention-goldsmith/0209-detention-go ldsmithpdf. (adumbrating a model system that identifies a class of individuals that would be subject to detention as enemy combatants while allowing for judicial review). One significant difference is the absence of an adversarial lawsuit triggering the judicial review I defend. Some regard this as a potentially significant constitutional defect.
369. See, e.g., Posner, supra note 105, at 255 (noting that as an Article III court, the FISC may not render advisory opinions). The best counterargument is probably that the review process ought to be regarded from the standpoint of constitutional law as the equivalent to reconsideration by the court of a search warrant.
370. This is not to deny that there will be cases that will require reviewing judges to make determinations about the nature of the intelligence process. Even using the system I have set out, some involvement in intelligence is inevitable. Where my proposal marks a break with current practice, however, is in relieving judges of the need to decide the overall value of a given intelligence program and in injecting robust, ongoing judicial involvement in intelligence governance.
371. Thomas O. McGarity, Public Participation in Risk Regulation, 1 RISK 103, 103 (1990).
372. GILL, supra note 70, at 303.
373. See generally Thomas C. Beierle & Jerry Cayford, Environmental Decision Making: What Does Public Participation Add?, ADMIN. & REG. L. NEWS, Winter 2003, at 6
374. (summarizing the conclusions of their book, THOMAS C. BEIERLE & JERRY CAYFORD, DEMOCRACY in PRACTICE: PUBLIC PARTICIPATION in ENVIRONMENTAL DECISIONS (2002)).
375. See, e.g., Pildes & Sunstein, supra note 158, at 86-89 (criticizing Justice Breyer's technocratic theory of administration for failing to sufficiently accommodate public values and perceptions of risk).
376. See also WILLIS, supra note 167, at 5 (explaining that "[r]isk is a social construct that incorporates value judgments about context and cause").
377. John D. Graham, The Risk Not Reduced, 3 N. Y. U. ENVTL. L. J. 382, 400 (1995).
378. See Sunstein, supra note 181, at 121-22 (discussing how emotional concerns and fears regarding terrorism cloud the ability of individuals to effectively evaluate threats, which results in widespread, unjustified public fear);
379. Tversky & Kahnenman, supra note 182 (reviewing studies of the "availability" heuristic and how it shapes individuals' assessments of frequency). For the view that some of these popular attitudes toward counterterrorism ought to be taken into account by a risk regulatory system
380. see Pildes & Sunstein, supra note 158, at 48-64 (arguing that some lay perspectives represent a different system of values rather than cognitive error).
381. But see W. Kip Viscusi, Risk Equity, in COST-BENEFIT ANALYSIS, supra note 162, at 7, 31 (arguing that "[t]he objective of government policy... should be to reduce objective risks to populations and to generate actual improvements in health rather than... illusory increases in well-being" and thus that risk assessment should not be concerned with the risks "people perceive that they face").
382. The heightened role for outside experts in the intelligence process is related, in general terms, to the growth of open-source intelligence ("OSINT"). OSINT is predicated on the idea that much of what there is to know about a subject is available in academic literature and reportage and does not require resort to clandestine collection or original analysis. Concerning OSINT, the greatest challenge is typically how to exploit information to useful effect without becoming overwhelmed by the quantity of data available through open sources.
383. See, e.g., Stephen Mercado, A Venerable Source in a New Era: Sailing the Sea of OSINT in the Information Age, in SECRET INTELLIGENCE: A READER 78 (Christopher Andrew, Richard J. Aldrich & Wesley K. Wark eds., 2009).
384. Congressman Frank Wolf has recommended instituting a "red team" or "Team B" approach to counterterrorism intelligence analysis whereby outside experts would offer a perspective potentially challenging the received wisdom within the government. See Bruce Hoffman, American Jihad, NAT'L INT., Apr. 20, 2010, http://www.nationalinterest.org/Article.aspx?id=23200.
385. JOHNSTON, supra note 148, at 11-13.
386. Luis Garcano & Richard A. Posner, Intelligence Failures: An Organizational Economics Perspective, J. ECON. PERSP., Fall 2005, at 151, 153-55.
387. See Lynn E. Blais & Wendy E. Wagner, Emerging Science, Adaptive Regulation, and the Problem of Rulemaking Ruts, 86 TEX. L. REV. 1701, 1735 (2008) (suggesting a regulatory system based on "revision rulemaking" by encouraging technological innovation while creating a flexible evaluation system).
388. Cf. Art Brown, Op-Ed, Intelligence Boosters, N. Y. TIMES, Dec. 14, 2008, at WK11 ("[The CIA] does not sufficiently tap into the expertise that exists across the breadth of America. The human spy components of the C. I. A. live in a cocoon of secrecy that breeds distrust of outsiders. This is one reason very few officers have BlackBerrys, and those few who do usually leave them in their cars when they go to work. Despite their reputation as plugged-in experts on other countries, many C. I. A. officers do not even have Internet access at their desks. Worse yet, they don't think they need it.").
389. Andrew Goldsmith, The Governance of Terror: Precautionary Logic and Counterterrorist Law Reform After September 11, 30 LAW & POL'Y 141, 163 (2008). Goldsmith goes on to call for "an institutionalization of pluralism, whereby different assessments of 'the problem' as well as 'what should be done' can be more openly investigated and discussed." Id
390. Rolince, supra note 88. One well-documented problem concerns the barriers to entry into the intelligence community of individuals with particularly useful linguistic and cultural skills due to agency hiring practices. As the former Director of National Intelligence Michael McConnell put it, The responsibility to protect sources and intelligence-collection methods from unauthorized disclosure has heightened some organizations' risk aversion. As a result, intelligence agencies have faced significant obstacles in hiring some of the people they need most: first-and second-generation Americans with fluency in languages ranging from Albanian to Urdu and with unique political, technical, or scientific skills. These men and women possess cultural insights and skills that no amount of teaching can impart. If the intelligence community is going to reach out to native speakers, it must change its recruitment practices, which currently make it difficult to hire such candidates.
391. Mike McConnell, Overhauling Intelligence, FOREIGN AFF., July/Aug. 2007, at 49, 56.
392. As "repeat players" within their respective communities, local police may be more attentive to their distinctive needs than federal agents. See generally Susan N. Herman, Collapsing Spheres: Joint Terrorism Task Forces, Federalism, and the War on Terror, in TERRORISM, GOVERNMENT, and LAW, supra note 196, at 78. For a critical assessment of the scholarly tendency to praise the role of local authorities in counterterrorism
393. see Samuel J. Rascoff, The Law of Homegrown (CounterJTerrorism, 88 TEX. L. REV. (forthcoming 2010).
394. Scott Shane, Blair Pledges New Approach to Counterterrorism, N. Y. TIMES, Jan. 23, 2009, http://www.nytimes.com/2009/01/23/us/politics/23blaircnd.html? scp=1&sq=&st=nyt.
395. Id.
396. See Exec. Order No. 12, 333, 46 Fed. Reg. 59, 941 (Dec. 4, 1981)
397. reprinted as amended in 50 U. S. C. S. § 401 (LexisNexis 2009)
398. (organizing and delineating certain authorities of the intelligence community). Executive Order 12, 333 was amended by Executive Order 13, 470, 73 Fed. Reg. 45, 325 (July 30, 2008).
399. See. e.g., Martin C. Libicki & David R. Howell, Privacy and Civil Liberties Protections in a New Domestic Intelligence Agency, in THE CHALLENGE OF DOMESTIC INTELLIGENCE, supra note 39, at 149, 167-69 (discussing the pros and cons of adopting policy of revealing to individuals the information that a domestic intelligence agency has about them).
400. Historically, the government has resisted revealing specific intelligence data through, for example, the FOIA process on the ground that partial revelations might ultimately reveal the larger strategic purpose behind the intelligence. See, e.g., David E. Pozen, Note, The Mosaic Theory, National Security, and the Freedom of Information Act, 115 YALE L. J. 628, 633-45 (2005) (discussing the government's national security claims in opposition to FOIA requests before 9/11). The upshot of my account is that the government theory has it exactly backwards. Whereas the revelation of specific details may be dangerous or otherwise unacceptable, the disclosure of the "big picture" will frequently be harmless to the government's interest.
401. See Posting to CNN Wire, http://cnnwire.blogs.cnn.com/2009/02/12/economy- is-securitythreat-dni-says/(Feb. 12, 2009, 16:52 EST).
402. This much-maligned system has recently been reviewed by a panel of experts. See HOMELAND SEC. ADVISORY COUNCIL, U. S. DEP'T OF HOMELAND SEC, HOMELAND SECURITY ADVISORY SYSTEM TASK FORCE REPORT and RECOMMENDATIONS (2009), http://www.dhs.gov/xlibrary/assets/hsac-final-report-09-15-09pdf. Half of the review panel said the alerts should be scrapped, half said they should be retained.
403. Id. at 2. If retained, the entire review panel agreed that the color alerts should be reformed, with more rigor applied to raising the threat level (and a process to automatically lower it in the absence of an identified persisting threat) as well as more specific and detailed information given to the public when the threat level is altered (including actions to be taken to counter the threat).
404. See id. at 2-3. These reforms are to be undertaken to provide transparency and thereby renew public confidence and lessen the danger of politicization of the alert system.
405. See id.
406. MI5 Security Service, Threat Levels, http://www.mi5.gov. uk/output/threat-levels.html (last visited Mar. 1, 2010).
407. See O'Connell, supra note 36, at 1667-68 (discussing the creation and development of the Director of National Intelligence's powers as a result of the IRTPA). This number is an estimate-and the Director of National Intelligence may actually be hiding the actual size of its staff. See Posting of Jeff Stein to SpyTalk, http://blogs.cqpolitics.com/spytalk/2009/07/spy-agencies-hiding- true-numbe.html (July 22, 2009, 21:55 EST).
408. See RICHARD A. BEST, Jr., Cong. Research Serv., Report No. RS21948, THE NATIONAL INTELLIGENCE DIRECTOR and INTELLIGENCE ANALYSIS (2004) (discussing the creation of the ODNI and its role in the intelligence gathering process).
409. See also McConnnell, supra note 221, at 50-54.
410. For a sense of the early predictions of doom
411. see Philip Shenon, Critics Say Bush's Intelligence Chief Would Be Toothless, N. Y. TIMES, Aug. 4, 2004, at A12. For a sense of the more current troubles
412. see A Bad Job: Restructuring Intelligence, ECONOMIST, Jan. 13, 2007, at 39.
413. See Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004, Pub. L. No. 108-458, § 102A (c), 118 Stat. 3638, 3644-55 (detailing the budgetary powers that would be vested in the Director of National Intelligence ("DNI"), including the ability to determine the most efficient and effective way to allocate ODNI funds);
414. CONG. REC. S11, 946-47 (daily ed. Dec. 8, 2004) (statement of Sen. Specter). For a sense of the politics behind this stripping of budgetary authority
415. see Gail R. Chaddock, Where Do Reforms Urged by 9/11 Commission Stand?, CHRISTIAN SCI. MONITOR, July 22, 2009, http://www.csmonitor.com/USA/Politics/ 2009/0722/where-do-reforms-urged-by-911-commission-stand.
416. 9/11 COMMISSION REPORT, supra note 41, at 357.
417. See Mark Mazzetti, Turf Battles on Intelligence Pose Test for Spy Chiefs, N. Y. TIMES, June 8, 2009, http://www.nytimes.com/2009/06/09/us/politics/ 09intel.html?-r=1 (discussing the dispute between the CIA and the DNI over which agency would be authorized to manage American intelligence personnel overseas).
418. See Pamela Hess, CIA, Intel Director Locked in Turf Battle, ASSOCIATED PRESS, May 27, 2009;
419. David Ignatius, Editorial, Duel of the Spy Chiefs: A Turf War Exposes a Botched Reorganization, WASH. POST, June 11, 2009, at A23 (explaining that the battle over appointing overseas agents stemmed from overlapping powers-those given to the DNI in the IRTPA and those that have been vested in the CIA since the Cold War).
420. Arthur Hulnick, a former CIA officer who used to edit the President's Daily Brief, reports that DNI John Negroponte would spend up to 60 percent of his time preparing for and conducting the Daily Brief, requiring an entire staff to aid this process. See Arthur S. Hulnick, Intelligence Reform 2008: Where to From Here?, 21 INT'L J. INTELLIGENCE & COUNTERINTELLIGENCE 621, 624 (2008) (explaining that there had not been significant reforms in the intelligence community but that the new administration had plans for reforming and updating the system, although it is questionable whether the plans will be successful due to bureaucratic inertia). Similarly, the ODNI Inspector General recently concluded that the DNI has had to devote much of his time to providing intelligence support to the President and senior policymakers. EDWARD MAGUIRE, ODNI, OFFICE OF INSPECTOR GEN., (U) Critical Intelligence Community Management Challenges 2 (2008), available at http://www.fas.org/irp/news/2009/04/odni-ig- 1108pdf;
421. Mark Mazzetti, Report Faults Spy Chief for Inaction on Turf Wars, N. Y. TIMES, Apr. 2, 2009, at A15 (reporting that "the inspector general[] said... it might be wise for the intelligence chief to limit the number of days he delivers the president's daily brief in the Oval Office").
422. Jack Devine, Editorial, An Intelligence Reform Reality Check, WASH. POST, Feb. 18, 2008, at A17. As former counterterrorism official Richard Clarke explained, with the way the ODNI currently functions, "You're left with the impression that it wouldn't make any difference if they didn't exist."
423. See Lawrence Wright, The Spymaster, NEW YORKER, Jan. 21, 2008, at 42. Rush Holt, a member of the House Intelligence Committee, recently observed that "[t]he D. N. I, seems to have no authority to manage and coordinate the agency he is supposed to coordinate."
424. See Mazzetti, supra note 238.
425. Faced with an ambiguous mission, the ODNI has pursued certain seemingly quixotic goals, sometimes to the intense displeasure of other members of the intelligence community. in one closely watched case, the ODNI lost its bureaucratic battle.
426. See Mark Mazzetti, White House Sides with CIA. in Turf Battle, N. Y. TIMES, Nov. 12, 2009, http://www.nytimes.com/2009/11/13/us/politics/13intel.html (noting that the White House "sided" with the CIA and upheld its longstanding prerogative of naming the top American intelligence official posted to each foreign country in the face of a challenge to that authority by the ODNI). Lingering tensions from that episode and others appear to have contributed to President Obama's recent decision to ask for Director Blair's resignation.
427. See Mark Mazzetti, Facing a Rift, U. S. Spy Chief to Step Down, N. Y. TIMES, May 20, 2010, at A1.
428. The vision Justice Breyer outlined for newly created administrative groups may be applied to the ODNI as well: [T]he group must have a... risk-related mission... of building an improved, coherent riskregulating system, adaptable for use in several... risk-related programs; the mission of helping to create priorities within as well as among programs; and the mission of comparing programs to determine how better to allocate resources to reduce risks.
429. See BREYER, supra note 178, at 60.
430. Commenting on one important aspect of oversight, intelligence veteran Robert Vickers pointed out that IRTPA "authorized the new DNI to 'ensure the elimination of waste and unnecessary duplication'" but "gave no specific guidance on how this should be done."
431. Robert D. Vickers, Jr., The Intelligence Reform Quandary, 19 INT'L J. INTELLIGENCE & COUNTERINTELLIGENCE 356, 357 (2006) (quoting Intelligence Reform and Terrorism Prevention Act (IRTPA) of 2004, Pub. L. No. 108-458, § 102A (f) (5), 118 Stat. 3638, 3649).
432. See also 150 CONG. REC. S11, 946-47 (daily ed. Dec. 8, 2004) (statement of Sen. Specter).
433. IRTPA § 102A (c) (5) (A), 118 Stat, at 3645.
434. Id. § 102A (f) (1) (A) (i). 118 Stat. at 3648.
435. Id. § 102A (f) (1) (A) (ii). 118 Stat. at 3648.
436. Id. § 102A (f) (5), 118 Stat. at 3649.
437. Id. § 1061, 118 Stat. at 3684-88.
438. Id. § 1061 (c) (2) (A), 118 Stat. at 3685. The Board itself has encountered some early turbulence related in part to claims of heavy-handed involvement by the White House.
439. See Posting of Lanny Davis, Why I Resigned from the President's Privacy and Civil Liberties Oversight Board-And Where We Go from Here, HUFFINGTON POST, May 18, 2007, http://www.huffmgtonpost.com/lannydavis/why-i-resigned-from-the-p- b-48817.html (recalling informing fellow Board members of his decision to resign in a letter stating, "I also continue to be concerned that there may be current and developing anti-terrorist programs affecting civil liberties and privacy rights of which the Board has neither complete knowledge nor ready access", and referring to "substantial 'redline' edits submitted by the White House" (quoting Letter from Lanny Davis to Privacy & Civil Liberties Oversight Bd. Members (May 14, 2007))).
440. Multiple tributes to the 9/11 Commission's work in stimulating the creation of the ODNI appear in the Congressional Record, as politicians were eager to embrace the perceived political cover that the Commission, with its recently completed 9/11 COMMISSION REPORT, conferred.
441. See, e.g., 150 CONG. REC. S11, 939 (daily ed. Dec. 8, 2004) (statement of Sen. Frist);
442. id. at S11, 940 (statement of Sen. Collins);
443. id. at S11, 941 (statement of Sen. Lieberman) (specifically noting that IRTPA implemented recommendations of the 9/11 COMMISSION REPORT);
444. id. at S11, 945 (statement of Sen. Specter). The White House similarly gave primary credit to the 9/11 Commission when it first announced plans to establish a new intelligence superagency.
445. See Press Briefing by Andrew Card, White House Chief of Staff (Aug. 2, 2004), (transcript available at http://georgewbushwhitehouse.archives.gov/news/ releases/2004/08/20040802-6.html).
446. See also White House, Fact Sheet: Leading the Way on Reforming and Strengthening Intelligence Services (Sept. 8, 2004), available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB144/20040908-5.html. Card also noted that the White House did get additional input from Judge Laurence Silberman of the D. C. Circuit and former Senator Chuck Robb, who were then in the process of conducting what would be known as the Report of the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction.
447. For a compilation of the pieces of information that, if only shared across the intelligence community, would have prevented 9/11, see BOBBITT, supra note 131, at 307-08. For a short history of the fractiousness of the so-called intelligence community
448. see Wright, supra note 239. For a sense of the prominence information sharing achieved after 9/11
449. see COMM'N ON THE INTELLIGENCE CAPABILITIES OF THE U. S., REPORT TO THE PRESIDENT REGARDING WEAPONS OF MASS DESTRUCTION 320 (2005), available at http://govinfo.library.unt.edu/wmd/report/wmd-reportpdf ("No shortcoming of the Intelligence Community has received more attention... than the failure to share information. ").
450. 150 CONG. REC. S11, 942 (statement of Sen. Lieberman) (alteration omitted).
451. Id.
452. Id. at Sll, 1 947 (statement of Sen. Specter).
453. McConnell, supra note 221, at 50.
454. FISA has not changed its requirement for individualized court approval of surveillance applications as to "U. S. Persons" inside the United States. See Office of the Press Sec'y. U. S Dep't of Justice, Background Briefing by Senior Administration Officials on FISA 8 (Feb. 26, 2008) (transcript available at http://www.usdoj.gov/archive/ll/docs/background- briefing-fisa022608pdf) ("We create a scheme that says, you do have to go to... court and get approval, just like you always have, if you want to target someone living in the United States-under traditional FISA.").
455. FISA Amendments Act of 2008, Pub. L. No. 110-261, § 702, 122 Stat. 2436, 2438-48.
456. See also Prieto, supra note 30, at 52-53 ("The new act does not require individual warrants from the FISA Court for each acquisition when the target is a non-U. S. person located outside the United States. in such cases, the FISA Court no longer reviews each application. Instead, its oversight is more general and takes the form of what are known as basket warrants. These authorizations can last up to one year. The act does not specify the breadth of the surveillance they can approve, leading some to characterize the authorization as monitoring plans.").
457. The ACLU has brought suit alleging inter alia that the "dragnet" surveillance authorized by the FISA Amendments Act violates the Fourth Amendment. Amnesty et al. v. Blair: FISA Amendment Act Challenge, ACLU, Apr. 15, 2010, http://www.aclu.org/national-security/amnesry-et-al-v- blair.
458. The district court dismissed the lawsuit for lack of standing. See Amnesty Int'l USA v. McConnell, 646 F. Supp. 2d 633 (S. D. N. Y. 2009). That judgment is currently on appeal before the Second Circuit.
459. Granting the FISC review of surveillance programs targeting persons outside the United States was a reversal of the general exemption from oversight of such programs that was enacted in the Protect America Act of 2007, Pub. L. No. 110-55, § 105A, 121 Stat. 552, 552 ("Nothing in the definition of electronic surveillance... shall be construed to encompass surveillance directed at a person reasonably believed to be located outside the United States.")
460. amended by FISA Amendments Act of 2008 § 702, 122 Stat, at 2438-48.
461. Under the FISA Amendments Act, the surveillance may not ordinarily begin until thirty days after the submission to the FISC of the materials certifying that the program is compliant with the requirements of FISA.
462. See FISA Amendments Act of 2008 § 702 (gX2) (D), 122 Stat, at 2440-41.
463. Section 702 (cX2), however, provides the Attorney General and the DNI with the authority to begin conducting surveillance prior to the issuance of the FISC's order should they determine that, due to exigent circumstances, "intelligence important to the national security of the United States may be lost or not timely acquired and time does not permit the issuance of an order." Id. § 702 (cX2), 122 Stat, at 2438.
464. They can do so either prior to submitting the certification of a program to the FISC or while the court is reviewing a program. Id. § 702 (cX3), 22 Stat, t 2438.
465. Additionally, the government is permitted to amend the details of previously approved programs and conduct the programs as amended during the period in which the FISC reviews such amendments.
466. Id.§ 702 (i) (l) (C), 122 Stat, at 2443-44.
467. FISA Amendments Act of 2008 § 702 (g) (2), 122 Stat, at 2440-41. The government must craft procedures that are designed (1) to ensure that it is only targeting persons outside the United States and to avoid the intentional collection of communications in which both sender and all intended recipients are within the United States; (2) to satisfy minimization requirements as defined by § 101 (h) or § 301 (4); and (3) to ensure compliance with the requirement that the surveillance neither targets U. S. persons outside the United States nor has the purpose of actually targeting specific persons inside the U. S. Id. § 702 (g) (2) (AHC), 122 Stat, at 2440.
468. Id. § 702 (iX3XB) (ii), (4) (A), 122 Stat, at 2445. While awaiting a rehearing or an appeal decision, the government may generally continue any of its ongoing programs.
469. Id. § 702 (iX4XB), 122 Stat, at 2445.
470. See Camara v. Mun. Court, 387 U. S. 523 (1967) (holding that probable cause for warrants to enforce the housing code need not require evidence of a violation at a specific location but instead is measured by a reasonableness standard).
471. See also Mich. Dep't of State Police v. Sitz, 496 U. S. 444 (1990) (upholding police sobriety checkpoint stops despite a lack of individualized suspicion).
472. See generally William C. Banks, Programmatic Surveillance and FISA-Of Needles and Haystacks, 88 TEX. L. Rev. (forthcoming 2010).
473. See supra note 258.
474. FISA Amendments Act § 702 (g) (2) (A) (v), 122 Stat, at 2440.
475. FISA Amendments: How to Protect Americans' Security and Privacy and Preserve the Rule of Law and Government Accountability: Hearing Before the S. Comm. on the Judiciary, 110th Cong. 52 (2007) (testimony of Morton H. Halperin, Director of U. S. Advocacy, Open Society Institute).
476. in response to Senator Feinstein, Patrick Philbin, former Deputy Assistant Attorney General, stated, "I think it is certainly an improvement on FISA to ensure that the court can provide programmatic approvals." Id. (testimony of Patrick Philbin. former Deputy Assistant Att'y Gen).
477. See also, e.g., Warrantless Surveillance and the Foreign Intelligence Surveillance Act: The Role of Checks and Balances in Protecting Americans' Privacy Rights (Part I): Hearing Before the H. Comm. on the Judiciary, 110th Cong. 115 (2007) (testimony of Morton H. Halperin, Director of U. S. Advocacy, Open Society Institute) [hereinafter Warrantless Surveillance Hearing] ("The problem comes because the executive branch wants the authority to listen to these calls without a warrant or with a generalized warrant that says you can listen to all the calls, and then what happens if there are a lot of Americans?").
478. Warrantless Surveillance and the Foreign Intelligence Surveillance Act: The Role of Checks and Balances in Protecting Americans' Privacy Rights (Part II): Hearing Before the H. Comm. on the Judiciary, 110th Cong. 72 (2007) (testimony of Kenneth L. Wainstein, Assistant Att'y Gen.).
479. See, e.g., 154 CONG. REC. S3 10-14 (daily ed. Jan. 25, 2008) (statement of Sen. Dodd);
480. CONG. REC. S15, 722-23 (daily ed. Dec. 17, 2007) (statement of Sen. Feingold).
481. 154 CONG. Rec. S6. 392 (daily ed. July 8, 2008) (statement of Sen. Bond). To be sure, the Republican report advocated for less FISC governance of basket warrants, not for the undoing of basket warrant authority.
482. See Eric Lichtblau & James Risen, Officials Say U. S. Wiretaps Exceeded Law, N. Y. Times, Apr. 16, 2009, at A 1 ("The [NSA] intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year....").
483. See, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U. S. 29 (1983).
484. See 50 U. S. C. § 1803 (aXO (2006).
485. Compare 50 U. S. C. § 1805 (a) (directing FISC judge to issue an ex parte order), with Administrative Procedure Act, 5 U. S. C. § 702 (2006)
486. See FISA Amendments Act of 2008, Pub. L. No. 110-261, § 702 (hX4), 122 Stat. 2436, 2441-42 (granting FISC jurisdiction to review petitions from telecommunications firms).
487. Id. § 702 (h) (6) (A), 122 Stat, at 2443. Litigation of just this sort arose under the Protect America Act, the predecessor to the FISA Amendments Act. That litigation culminated in the FISA Court of Review's opinion in In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004 (FISA Ct. Rev. 2008).
488. in a previous appeal before the FISA Court of Review, that court called for and received briefing from numerous public interest-oriented organizations, including the ACLU.
489. See in re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002).
490. Harold Hongju Koh raised a similar point in testimony before the Senate Judiciary Committee, stating: Also curious is the bill's Section 704, which directs the FISA court to consider the benefits of a particular program "as reflected by the foreign intelligence information obtained." This is a judgment, calling in effect for an advisory opinion, which is far more appropriate for a legislative committee than for an Article III court tasked with deciding cases or controversies. Wartime Executive Power and the National Security Agency's Surveillance Authority II: Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2006) (statement of Harold Hongju Koh, Dean, Yale Law School).
491. FISA Amendments Act of 2008 § 702 (hX3), 122 Stat, at 2441.
492. Even prior to the FISA Amendments Act, only one major telecom was apparently unwilling to assist the government in performing electronic surveillance outside the bounds of FISA.
493. See Leslie Cauley, NSA Has Massive Database of Americans' Phone Calls, USA Today, May 11, 2006, at A l. The telecoms cooperated with the government despite a worry about potential criminal liability.
494. See 18 U. S. C. § 2511 (2006).
495. See generally DAVID S. KRIS & J. DOUGLAS WILSON, NATIONAL SECURITY INVESTIGATIONS and PROSECUTIONS (2007) (discussing the history of national security investigations both pre-and post 9/11).
496. See, e.g., Doe v. Ashcroft, 334 F. Supp. 2d 471 (S. D. N. Y. 2004).
497. USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, Pub. L. No. 109-178
498. sec. 3, § 501 (f)
499. Stat. 278, 278-79;
500. USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, § 3511, 120 Stat. 194, 211-13 (2006).
501. As the Second Circuit put it in John Doe, Inc. v. Mukasey, 549 F.3d 861, 883 (2d Cir. 2008), "We deem it beyond the authority of a court to 'interpret' or 'revise' the NSL statutes to create the constitutionally required obligation of the Government to initiate judicial review of a nondisclosure requirement. However, the Government might be able to assume such an obligation without additional legislation. "
502. Id. at 879.
503. 5 U. S. C. § 553 (2006). Thus, Senator Bond asked a senior FBI official, "What opportunity have the outside privacy national security groups had to offer any comments? Do you anticipate any changes based on comments from those groups or from Congress?" The official responded: We have held a series of briefings over the last six weeks. We've held three formal briefings to staff up on the Hill. We then also had an extensive briefing session with numerous outside organizations, both civil rights groups and civil liberties and privacy organizations. We have also made the guidelines available upon request to Members and Committee staff. This has been a six-week process. We do anticipate making changes in response to the comments that we have received.
504. Attorney General Guidelines Hearing, supra note 117, at 18 (testimony of Elisebeth Collins Cook, Assistant Att'y Gen.).
505. Senator Jay Rockefeller expressed his appreciation at the "Attorney General's decision to consult with Congress and his willingness to seek comments on the proposed guidelines, not only from the Hill, but also from selected representatives of civil liberties organizations on a read and return basis, which has already taken place."
506. Id. at 1 (statement of Sen. Jay Rockefeller). He went on to express regret, however, that the guidelines have not been publicly released, by which I mean in a broader sense for broader debate and broader comment, not just the people who would cluster about the subject, but broader than that, because this is a huge decision. Circulating the actual proposed guidelines would be a constructive step in generating additional review and commentary. Id. Soon thereafter the guidelines were, in fact, released publicly.
507. Andrew Kalloch, FBI General Counsel Defends New Guidelines, Harv. L. Rec, Dec. 4, 2008, http://media.www.hlrecord.org/media/storage/paper609/news/2008/ 12/04/News/FBI-
508. General. Counsel. Defends. New. Guidelines-3568931.shtml. According to one official, the notice and comment procedure had been employed once before by the FBI. As an unnamed senior official put it, I'd like to say this model is not new. During the NSL discussions some time back, when we came out with the FBI guidance to make it clearer for agents in terms of that compliance-these are the touchstones that have to be hit. We brought the same groups in, or many of the same groups, and had them go over the proposed guidance, and they went over it and they came up with a couple of dozen suggested changes. Interestingly, most of what they came up with wasn't, "we don't want you to do this." Most of what they came up with was[,] "what does this mean?" Which was a lot of what the discussion was today. Very similar to this-what exactly does that mean? and when we explained in detail what [we] meant, most of their things-wouldn't it be clearer if you added this or if you said that? and I think the vast majority of what they gave in that, in those discussions, actually got put into the guidance. So, in other words,... we looked at it as two things. One, it's the level of transparency. The second thing was it was productive for both of us. U. S. Dep't of Justice, Briefing with Department Officials on Consolidated Attorney General Guidelines (Sept. 12, 2008) (transcript available at http://www.usdoj.gov/opa/pr/2008/September/08-opa-814.html) (speaker identified as "Senior FBI Official 2").
509. Kalloch, supra note 282.
510. Attorney General Guidelines Hearing, supra note 117, at 9 (testimony of Valerie Caproni, General Counsel, FBI). An unnamed senior official explained the process as follows: [It's been] a very productive discussion. I think that there is not always going to be agreement between us and other groups... to what techniques should be available to investigate threats to... national security. There are longstanding and sincerely held beliefs about what are the appropriate restrictions on the FBI's conduct. I hope that we had a good conversation with them and that they would understand where we are coming from. We were not singing Kumbaya when we left the briefing, but we did shake hands and they thanked us for having them in.
511. Briefing with Department Officials, supra note 282.
512. Oversight of the Federal Bureau of Investigation: Hearing Before the S. Comm. on the Judiciary, 110 Cong. (2008) (testimony of Robert S. Mueller, III, Director, FBI) [hereinafter Oversight Hearing].
513. Id. at 23. The rules are now posted on the FBI website. See DOMESTIC INVESTIGATIONS & OPERATIONS Guide (FBI 2008), available at http://foia.fbi.gov/foiaindex/diog.htm.
514. Director Mueller responded by noting that "this is the first time, in my experience, that we have sought outside input-not just from Congress, but also from the ACLU, privacy interests, in order to get suggestions." Oversight Hearing, supra note 285, at 23.
515. See, e.g., [Errata] Restoring the Rule of Law: Hearing Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 11 0th Cong. 428 (2008) (statement of Daniel Farber and Anne Joseph O'Connell, Professors, University of California, Berkeley, School of Law (Boalt Hall)) (stating that "[a]bsent a clear contrary need, every national security policy with consequences for civil liberties and other democratic values should go through notice and comment procedures" (emphasis omitted)).
516. See generally Arunabha Bhoumik, Democratic Responses to Terrorism: A Comparative Study of the United States, Israel, and India, 33 DENV. J. Int'L L. & Pol'Y 285 (2005) (calling attention to the divergence of the "intelligence" model of counterterrorism from the war and law enforcement models).
517. See, e.g., Roger Cohen, Op-Ed., After the War on Terror, N. Y. TIMES, Feb. 8, 2009, available at http://www.nytimes.com/2009/01/28/opinion/28iht- edcohen. 3.19745699.html?scp=l&sq= cohen%20after%20the%20war%20on%20terror&st=cse (advocating a new approach that would see counterterrorism as a "strategic challenge").
518. See, e.g., Lobel, supra note 124.
519. See POSNER & VERMEULE, supra note 188, at 274 (noting the irony of how academic lawyers who are typically supportive of executive power in the regulation of the economy are typically opposed to it in the context of national security).
520. See Paul Bracken, E-Note, Intelligence and Risk Management, Dec. 2008, FOREIGN POL'Y RESEARCH INST., available at http://www.fpri.org/enotes/200812. bracken. intelligencerisk management.html (arguing that risk management has not been widely used in the intelligence community because the intelligence community has historically been unclear how to employ it).
521. See KELLER, supra note 94, at 13-14.