Regulating Domestic Intelligence Collection

90 Pages Posted: 29 Mar 2016 Last revised: 22 Apr 2016

See all articles by Emily Berman

Emily Berman

University of Houston Law Center

Date Written: March 1, 2014

Abstract

Scholars have long recognized that a Federal Bureau of Investigation wielding robust domestic intelligence-collection powers poses a threat to civil liberties. Yet the FBI’s post-9/11 mandate to prevent terrorist attacks (not merely investigate completed attacks) demands that the agency engage in broad intelligence-collection activities within the United States — activities that can threaten fundamental freedoms. This Article argues that strategies derived from administrative law principles can help alleviate the tendency of threat-prevention efforts to erode civil liberties.

The fundamental problem this Article tackles is that the traditional governance mechanisms we rely upon to protect individual rights are ineffective in the domestic intelligence collection realm. This failure of traditional checks stems from, first, the absence of practical constraints to channel the enormous discretion that the Justice Department and the FBI enjoy in determining the scope and nature of the FBI’s domestic intelligence-collection activities; second, the lack of judicial or political checks on these activities, resulting in a deficit of democratic legitimacy and accountability; and third, the risk that the FBI’s singular focus on terrorism prevention will overwhelm rights-protection concerns.

Keywords: FBI, Surveillance, Intelligence, National Security, Counterterrorism, Attorney General

Suggested Citation

Berman, Emily, Regulating Domestic Intelligence Collection (March 1, 2014). Washington and Lee Law Review, Vol. 71, No. 1, 2014; U of Houston Law Center No. 2016-A-9. Available at SSRN: https://ssrn.com/abstract=2755666

Emily Berman (Contact Author)

University of Houston Law Center ( email )

100 Law Center
Suite 210 TUII
Houston, TX 77204-6060
United States

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