Domesticating Intelligence

Abstract:     
In the best of circumstances, governing domestic intelligence is challenging. Intelligence sits in an uncomfortable relationship with law's commitment to transparency and accountability. History amply demonstrates that intelligence — including domestic intelligence — frequently begins where the rule of law gives out.

The inherent difficulty of governing intelligence has been unnecessarily exacerbated by a deep-seated and longstanding confusion about what domestic intelligence is. For over a century, policymakers and academic commentators have assumed that it is essentially a form of criminal investigation and that criminal law supplies the logical starting place for its effective governance. Over the years, this faulty premise has fostered a boom-and-bust cycle in intelligence governance; domestic intelligence has been, at different times, effectively out of business or unchecked by law.

This Article introduces a new way to think about domestic intelligence and its governance. Domestic intelligence is a kind of risk assessment, a regulatory activity familiar across the administrative state. Similar to risk assessments in environmental or health and safety law, domestic intelligence seeks to quantify a risk before it materializes, based on the careful analysis of aggregative data.

Domestic intelligence as risk assessment in turn necessitates a regulatory approach to intelligence governance. This Article shows how some of the mainstays of administrative law—especially an expansive conception of cost-benefit analysis, judicial review, and pluralism—can and must play a key role in intelligence governance. It contends that intelligence governance must concern itself not merely with producing intelligence that is obtained without illegality or abuse, but also with generating accurate and useful intelligence. This Article makes concrete recommendations for situating these theoretical claims within the institutional landscape of contemporary intelligence practice.

For the foreseeable future, domestic intelligence is here to stay. The need for "domesticating" intelligence is therefore urgent. This Article shows how to do so in a way that reflects an accurate understanding of intelligence and its proper governance.

Number of Pages in PDF File: 74

Keywords: Domestic Intelligence, Oversight, Risk Assessment

Accepted Paper Series