Strong Intelligence Oversight Can Happen Within the Executive Branch

That the American public is divided on the current showdown between Silicon Valley and the national security state is to be expected. What is more striking, at least at first blush, is that the government — and in particular, the executive branch — is itself of multiple minds. Obviously the FBI and the Justice Department have staked out clear-cut positions. But, as has been reported, certain other national security agencies (notably the Pentagon and the NSA) have pushed a softer line. And other departments like Commerce and State, by reason of their missions, find themselves in a more moderate place.

This sort of internal dissent may seem like a recipe for governmental paralysis. But, in fact, it has the potential to produce sounder and more rights-protective security practices. As I argue in a recent article, the ability of the White House to hear from multiple stakeholders — inside and outside of government — is a defining feature of the emerging landscape of intelligence oversight. And it represents a major opportunity to make some headway in this area. Last generation’s oversight mechanisms involved secret tribunals and committees purporting to assess the work of our spy agencies. Increasingly, however, the oversight process looks more like policymaking within the regulatory state, with disparate interests making their case to the White House, which then must decide how to weigh the competing strategic, economic, political, and ethical issues.

This sort of holistic approach is welcome. A president who is mindful of the myriad tradeoffs entailed in this area can ask skeptical questions of his intelligence chiefs. But he can also appear before a tech-savvy audience at South by Southwest and register his disagreement with privacy “absolutism.” In other words, and most fundamentally, the White House can optimize on intelligence practices that are simultaneously effective and command the respect of the public.

For a useful contrast, consider the situation in Europe, which nowadays is schizophrenic when it comes to issues of surveillance and security. On the one hand, its privacy technocrats (and the judges on both the European Court of Justice and the European Court of Human Rights) have staked out stark positions on both American and European security practices. But this pro-privacy bent coincides with the rise, in a place like France, of relatively unchecked security measures. Europe’s spies, it seems, pay its privacy regulators no heed.

Empowering the White House in shaping surveillance policy is not a panacea. But some well-rehearsed potential concerns, for example the perennial fear of intelligence politicization, should not stand in the way of its acceptance. In a world in which the complex tradeoffs entailed by surveillance policies now dominate the headlines, an integrated approach to intelligence oversight should be embraced, not feared. 

About the Author(s)

Samuel J. Rascoff

Associate Professor of Law and Faculty Director of the Center on Law and Security at NYU School of Law