Strengthening Intelligence Through Administrative Law

Samuel J. Rascoff, Domesticating Intelligence, 83 S. Cal. L. Rev. 575 (2010). Peter Shane Having taught some version of "separation of powers law" since 1982, I think I can say with some certainty that few problems of democratic accountability are more vexing than the general subject of "intelligence oversight." For half a century, scandal after scandal has exposed an intelligence apparatus that is too often unreliable and susceptible to gross abuse. Against this background, one might be forgiven a certain amount of pessimism for the future of reform. But it is not as if we are lacking for ideas. Samuel Rascoff's article, Domesticating Intelligence, 83 S. Cal. L. Rev. 575 (2010), takes an especially thoughtful and creative approach with regard to domestic intelligence gathering, basically urging the application of familiar administrative law principles to achieve both "full compliance with the law, but also intelligence that is accurate, efficient, and useful to policymakers." Professor Rascoff's core argument is that "an expansive approach to cost-benefit analysis that [he refers] to as rationality review, judicial review, and public participation made possible by increased transparency ought to play significant roles in reconfiguring the governance of domestic intelligence." Taking administrative law into this unaccustomed domain is an important scholarly contribution. Continue reading "Strengthening Intelligence Through Administrative Law"

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