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.