90 Pages Posted: 26 Jan 2006
The changes to the intelligence community and its congressional overseers recommended by the 9/11 and WMD Commissions, both those implemented and those not adopted, raise fundamental questions of administrative and constitutional law. These questions cut to the heart of the federal government's effectiveness in addressing two of the most prominent policy imperatives of our time: protecting national security and maintaining core democratic values, including civil liberties, transparency, and accountability. How should agencies and congressional oversight be structured in a system of separate but overlapping powers that aims to protect both national security and central liberal democratic values? Should administrative agencies (or congressional committees) be combined or placed in competition with each other? Answers to these questions are constrained by political realities. As Terry Moe explains, the bureaucracy arises out of politics, and its design reflects the interests, strategies, and compromises of those who exercise political power.
Drawing on research in economics, political science, and law, this paper considers three important perspectives on the recommendations to unify intelligence agencies and to consolidate congressional oversight, which have not, so far as I can tell, been applied to intelligence reform rigorously in combination. These perspectives, in addition, have wider application to any possible restructuring of the administrative state. First, what are the most effective structures of the intelligence bureaucracy and congressional oversight for national security, taking into account both benefits and costs? Second, what structures are politically and legally feasible? It is very difficult, though not impossible, to change jurisdictions of agencies and congressional committees. The Intelligence Reform and Terrorism Prevention Act of 2004 changed some agency jurisdictions, but it did not shift congressional boundaries. Third, what types of agencies and congressional structures should a democratic society desire? How does the organization of the intelligence community and congressional oversight affect core liberal democratic values? This Article questions the siren call of unification on the grounds of national security effectiveness, political feasibility, and democratic legitimacy, and suggests future avenues for research.
Keywords: intelligence reform, agency design, redundancy, congressional committees, civil liberties
JEL Classification: D20, D73, D72, H11
Suggested Citation: Suggested Citation
Joseph O'Connell, Anne, The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World. California Law Review, Vol. 94, p. 1655, 2006; UC Berkeley Public Law Research Paper No. 878223. Available at SSRN: https://ssrn.com/abstract=955976