1,720,992 research outputs found
Congressional Oversight of National Security Activities: Improving Information Funnels
Get PDFThis article, which was prepared for a spring 2007 conference at Cardozo Law School on The Domestic Commander in Chief, considers constitutional and policy questions regarding congressional oversight of national security activities. The article focuses on what I call an information funnel approach. Such an approach involves funneling information only to discrete groups of people. For example, statutory provisions require that intelligence programs be shared with the congressional intelligence committees. Other statutory provisions permit certain narrowly defined covert actions to be reported only to the congressional leadership. The intended benefits of funneling are intuitive. Funneling plainly is directed toward balancing the respective advantages of secrecy and openness. It demands some inter-branch knowledge sharing without requiring full public or even full congressional access. This article agrees that funneling is a theoretically and practically important means of reconciling secrecy and openness needs but contends that funneling has not, in fact, been taken seriously enough. The purpose and utility of funneling have been under-explored, and funneling\u27s propriety and implications thus are poorly understood. Questions remain, for example, over whether funneling requirements infringe on the separation of powers and thus need not always be obeyed. And it is uncertain what if anything should follow from information funneling - whether, for example, those with whom information is shared should be able to take some action in response to what they learn. This article uses the recent controversy about warrantless surveillance by the National Security Agency as a jumping-off point to explore these questions. Specifically, the article focuses on information exchanges between Congress and the executive branch about the program. Part I examines these exchanges as well as inter-branch discussions about the same. It concludes that two major problems that these incidents reflect are widespread uncertainty as to whether Congress constitutionally may force the President to disclose information and a lack of careful consideration as to how any information funneling requirements should work. Part II lays a theoretical foundation for improving governing statutes and congressional rules. Part II(A) explains that Congress has the constitutional authority to set information-sharing requirements between the executive branch and itself. Part II(B) discusses the complicated relationships between the respective benefits of secrecy and openness, an understanding of which should guide information sharing rules. Building on Part II\u27s theoretical foundations, Part III suggests some answers to the questions raised in Part I as to how information funneling requirements should work
Macro-Transparency as Structural Directive: A Look at the NSA Surveillance Controversy
Get PDFThis article was prepared for the Minnesota Law Review\u27s fall 2006 symposium. The article does two main things: (1) It considers the relationship between constitutional structure and government information control and (2) It uses the recent NSA surveillance controversy to exemplify its constitutional analysis. The core constitutional argument is as follows: Much of the Constitution, including provisions about political branch structure, is about facilitating inter-branch transparency and transparency between the branches and the people. At the same time, the Constitution leaves some room for government secrecy. Constitutional structure gives us a way to reconcile these two characteristics: any government secrecy must be subject to some avenue for political checking and alteration. The major means of this reconciliation is for the executive branch to have the capacity to execute secret operations, subject to legislative checking. Secret Presidential activities that not only are kept from Congress but that run counter to publicly promulgated legislative directives run afoul of this Constitutional framework. With respect to the NSA surveillance controversy, the article explains that the FISA statute and its history exemplify how the described Constitutional framework should operate. The Bush Administration\u27s secret circumvention of FISA, on the other hand, exemplifies a dangerous breakdown in this framework
What If Daniel Ellsberg Hadn\u27t Bothered?
Get PDFThis article was written for the Indiana Law Review’s 2011 annual symposium entitled, “What If? Counterfactuals in Constitutional History.” As the article’s title suggests, it considers the impact of Daniel Ellsberg’s decision to leak the Pentagon Papers to the New York Times. The article takes some liberty with the topic of constitutional counterfactuals. Despite its author’s vast enjoyment of several classic movies and television episodes featuring parallel worlds, the article does not build a counterfactual universe in which Daniel Ellsberg never leaked the Pentagon Papers. It hints at such a world indirectly, however, by considering the difference that Ellsberg’s leak made in the universe that we do occupy. Specifically, the article considers the impact of the Pentagon Papers leak on public and judicial attitudes toward secrecy-based assertions by the executive branch. The term secrecy-based assertions covers two types of claims: claims that information must be kept secret to protect national security, and claims that the public would understand and bless the government’s actions if only the public could see the information that they are not permitted to see. This article argues that the Pentagon Papers leak and its aftermath helped set in motion a process of social learning - albeit a non-linear one with plenty of limits and setbacks - that continues to this day on the dangers of excessive deference to secrecy-based assertions by the government
- …
