The Architecture of Accountability: A Case Study of the Warrantless Surveillance Program

Abstract

This Article identifies mechanisms that help to hold the federal government’s executive branch accountable for complying with the law, and shows how claims of national security secrecy undermine the effectiveness of these accountability mechanisms. It identifies four distinct stages in the process of accountability, sets out a typology based on the mechanisms’ location inside or outside of government, and identifies some of the specific mechanisms that hold the executive branch accountable for violations of the law. These multiple overlapping mechanisms would appear to constitute a robust system of accountability.

A review of how this system of accountability operated in connection with the Bush Administration’s warrantless surveillance program, however, reveals that all of these mechanisms share a common characteristic, which turns out to be a weakness: a dependence on the provision of information. Remove the information, and the entire structure of apparently robust accountability collapses. The executive branch was able to prevent these multiple accountability mechanisms from scrutinizing the warrantless surveillance program by asserting national security secrecy. This systematic weakness in the accountability architecture has significant policy implications, including the need to recognize a crime-fraud exception to the state secrets privilege.

Keywords: Intelligence, Intelligence Community, CIA, Covert Action, Checks and Balances, Legislation, Secrecy, Surveillance, Oversight, National Security, President, Congress, ethics, public law, national security