Uncle Sam’s Corporate Helpers in the War on Terror
posted by Danielle Citron
Jon Michaels has written a superb article, “All the President’s Spies: Private-Public Intelligence Partnerships in the War on Terror,” recently published by California Law Review, which criticizes the Bush Administration’s informal intelligence-gathering partnerships with private actors, including data brokers, FedEx, and Western Union. As the article explores, this “privitization” of intelligence gathering has operated in the shadows, without legislative or judicial oversight. Michaels’s piece suggests reforms to enhance the accountability of such practices that the Obama Administration and the newly-elected Congress would be wise to heed.
Here is the abstract:
Commentators who have examined the Executive’s post-September 11 practice of persuading corporations to enter into informal and, at times, unlawful intelligence-gathering partnerships have largely viewed the participating firms as co-conspirators, unwitting pawns, or coerced captives of the Executive-and understandably so. After all, participating corporations have been instrumental in enabling U.S. intelligence officials to conduct domestic surveillance and intelligence activities outside of the congressionally imposed framework of court orders and subpoenas, and also outside of the ambit of inter-branch oversight. Yet despite their track record as enablers, corporations are uniquely positioned to help rein in the currently unregulated practices.
This Article analyzes corporate-government agreements and provides the rationale and blueprint for shifting the principal locus of compliance with existing laws (and oversight obligations) from the intelligence officials to the corporations. The inquiry begins by laying out the Article’s fundamental postulates: the intelligence agencies depend on private actors for information gathering; the Executive is institutionally predisposed to seek maximum discretion in conducting intelligence operations, both because of the overwhelming pressure to thwart acts of terrorism and because its officials are relatively immune from serious legal or political sanction for proceeding ultra vires; and, the Executive may choose to conduct intelligence policy through informal collaborations notwithstanding the legal, political, and economic harms these shadowy bargains may generate.
To mitigate these harms and enhance the legitimacy of domestic intelligence-gathering practices, the Article proposes to flip the private-public partnerships on their heads, converting the privatization schemes from the handmaidens of inscrutable intelligence policy into the guarantors of a new counterterrorism regime built on legality, integrity, and accountability. Whereas the Executive has shown itself willing (and able) to disregard legal requirements, the corporations lack the incentive and institutional capacity to act with similar abandon.
Thus, the Article recommends that Congress consider using these unlikely – but more pliable – corporate allies as gatekeepers, strengthening the currently incomplete and oft-bypassed legal framework for intelligence operations by obligating the firms to condition their intelligence-gathering cooperation on the Executive’s compliance with legal formalities. Ultimately, the Article seeks not only to provide practical insights into the instant problems with unaccountable intelligence operations, but also to spark normative thinking both about how to manage a counterterrorism policy that is rapidly outgrowing the traditional boundaries of private versus public governance and, more generally, about how to involve private actors (and harness their self-interests) in efforts to boost compliance in other failing or failed public-law-enforcement paradigms.
November 13, 2008 at 2:29 pm
Posted in: Privacy (National Security)
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Responses (4)
Frank - November 13, 2008 at 6:06 pm
This looks fascinating. Congress’s ultimate leverage is the power of the purse, and it could use government contracting decisions to influence private actors in the right direction here.
Jay Levitt - November 14, 2008 at 11:57 am
“the corporations lack the incentive and institutional capacity to act with similar abandon.”
Didn’t we just see this argument fail miserably with telecom immunity? The corporations DID act with abandon, and we granted blanket immunity for any laws they might possibly have violated, as long as they had a letter from the President that it was okay.
Quidpro - November 16, 2008 at 4:25 pm
The Horror!!! To think that corporations might actually choose sides in a time of war. How irresponsible of those mean corporations to act in a responsible manner to help protect the country.
Now that there will be a change in administrations, I am sure that the age of public-private coordination will come to an end.
A.W. - November 17, 2008 at 9:33 am
Didn’t you get the memo. Now that your guy is president, it is okay to do exactly what bush has been doing, if The One deigns to do it.
Really, great strategy. Weaken national defense while the dems are in charge. then we get hit. Then hope the american people don’t think the two are related.
If you liked the Patriot Act, you are going to love what will happen if we are hit again during the next four years. Maybe “The One” won’t do it, if he doesn’t, his replacement will.
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