The Government Institution Most in Need of Comprehensive Reform

Marty Lederman

No, not the Office of Legal Counsel. The intelligence oversight apparatus. Yes, a large part of the problem is the particular Democrats who happen to be among the "Gang of Eight" and "Gang of Four." (To get a good sense of why the Senate Intelligence Committee will not get to the bottom of the latest scandal, just take a look at this lackluster performance by Jay Rockefeller yesterday on Face the Nation.) But even if we had the very best Dems on the Committee, there would still be virtually nothing they could do to address possible unlawful, or even just unwise, conduct by the intelligence agencies. (But cf. this post by Michael Froomkin on the Speech and Debate Clause.)

The pattern is by now very familiar. Whenever the Administration begins to do something of dubious legality, it:

1. sends to Congress messengers who the Intel committees trust -- solemn, serious, professionals, often uniformed military officers

2. to inform a very select, small number of legislators of the conduct -- legislators who have developed close and trusted relationships with the intel officials briefing them and who are, quite understandably, loathe to undermine such relationships, which do, after all, facilitate trust, access, and oversight itself

3. and to provide such briefings after the conduct has commenced

4. in a highly classified setting

5. putting the conduct in its best possible light -- in particular, making sure to insist that it has prevented terrorist attacks

6. while assuring the legislators that it has been vetted by the lawyers and is legal

7. without showing the legislators the legal analysis supporting the conduct

8. without disclosing the legal arguments that cut the other way

9. without informing the legislators of any policy-based or legal dissent within the executive branch

10. while warning the legislators that they may not legally breathe a word of it to anyone -- certainly not to staff, or their fellow legislators, nor to experts outside Congress who might be able to better assess the legality and efficacy of the conduct

11. and while insisting that the legislators cannot second-guess the need for classification and secrecy, even in cases -- such as with respect to OLC opinions concerning what techniques are lawful and which are not, and with respect to conduct that has been revealed to the enemy already -- where there is no legitimate justification for the classification.

The reaction from the Intel Commmittees is, alas, predictable: Muted, furtive and internal (i.e., entirely ineffective) protest, at best. More often than not, acquiescence and encouragement.

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The question of how, exactly, to reform the intelligence oversight process is a very important and complex one -- but it's something that is rarely debated in public, and even more rarely contemplated at academic settings and in law schools. [UPDATE: I should have mentioned that such discussions and proposals are not entirely unheard of. See, most importantly, section 13.4 of the 9/11 Commission Report, and this related paper, published in the California Law Review, by Anne Joseph O'Connell of Boalt.]

Far be it for me to lay out a definitive framework for reform, but it might include some or most of the following components (this is just off the top of my head; please consider it a rough work-in-progress):

1. Strict requirements of notification before dubious conduct is undertaken (or in truly exigent circumstances, immediately thereafter). That's basically the law now, with respect to covert action and other aspects of intelligence activity, but the Executive branch regularly bends and flouts the requirements, and Congress does little or nothing to enforce them.

2. Notification and reporting to the entire Intelligence and Judiciary Committees -- the "Gang of Four" and "Gang of Eight" rules have proven to be a recipe for disaster. What are the "Gangs" supposed to do with the information, anyhow, if they can't even share it with their colleagues on the Committees? Can you imagine limiting the information within the executive branch to only the President and three or seven agency heads?

3. Significant changes in the classification standards and practices. At the very least, OLC legal opinions should be public, with appropriate redactions to protect sources and agency methods and technological capabilities that are genuinely unknown. Conduct that is revealed to persons outside the government -- such as the way we treat detainees -- should not be classified.

4. A serious, workable mechanism for congressional revelation and public oversight of suspected wrongdoing, including rules, which Congress might codify, to allow Congress to question particular classification decisions.

5. Meaningful recordkeeping and related requirements. There's no good reason that a law should not be enacted requiring that all interrogations be videotaped, for instance. Such a thorough record is good for intelligence; it's good for law enforcement and trials; it's good for oversight; and it deters unlawful conduct.

6. This might be the most important item: choosing Committee members, and counsel, who know as much about the relevant law governing the intelligence agencies as the relevant actors in the executive branch do. As it stands, there is a huge disparity in expertise and understanding. Congress cannot possibly provide sufficient oversight unless the people receiving the information are as conversant with the legal landscape as are the intelligence agencies and the lawyers in the Justice Department. And congressional counsel must be afforded access to the same information provided to the members of the Committees. Can you imagine if the professionals and the counsel within the executive branch were denied any knowledge of what goes on in the intelligence agencies? Well, it makes just as little sense on the legislative side, too.

7. The members of the Committees must be willing to use the leverage they have to obtain information that the executive branch refuses to share. In recent days, Senator Rockefeller, for instance, has been heard complaining that he has repeatedly asked the Administration for memos, documentation, etc., regarding the CIA interrogation program, only to be rebuffed at every turn. The committees are still seeking authorization to make public the OLC memos on interrogation and surveillance -- but no such permission is forthcoming. But yet Rockefeller, et al., then go ahead and push through the Military Commissions Act; they work to grant telecom immunity; they cooperate with the Administration on FISA "reform"; etc. At every turn, that is, they cooperate to give the Administration most of what it wants in terms of legislative amendments. They should, instead, insist that they will not even consider such proposals unless and until the Administration comes clean with all of the information and documentation that the Committee has been requesting for several years.

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Some or all of these suggestions may be terribly misguided -- I more or less jotted them down off the top of my head. And perhaps I've neglected to focus on several much more important items. One thing's for sure, though -- the current system is woefully inadequate, and cries out for serious reform proposals.
Posted 8:02 PM by Marty Lederman [link]