Protecting rights from within? Inspectors general and national security oversight.

AuthorSinnar, Shirin
PositionIntroduction through II. Case Studies of National Security IG Reviews, p. 1027-1055

INTRODUCTION: AN INTERNAL SEPARATION OF POWERS? I. NATIONAL SECURITY INSPECTORS GENERAL A. Distinctive Features of IGs B. Rights Monitoring Among National Security IGs II. CASE STUDIES OF NATIONAL SECURITY IG REVIEWS A. More Consequential Reviews 1. Department of Justice IG review of September 11 detainees 2. Department of Justice IG review of National Security Letters 3. CIA IG review of coercive interrogations B. Less Consequential Reviews 1. Department of Homeland Security IG review of Maher Arar rendition 2. Department of Defense IG review of military monitoring of protests III. ASSESSING IG RIGHTS OVERSIGHT A. Five Dimensions of Rights Oversight B. How IG Reviews Addressed These Dimensions 1. Increasing transparency 2. Identifying rights violations and wrongful conduct 3. Providing relief for victims 4. Holding government officials accountable 5. Revising agency rules to prevent future abuses C. The Strengths and Limits of IGs IV. STRENGTHENING IG RIGHTS OVERSIGHT A. Why Strengthen IG Rights Oversight B. Reforms to Strengthen IGs CONCLUSION INTRODUCTION: AN INTERNAL SEPARATION OF POWERS?

More than a decade after September 11, 2001, the debate over which institutions of government are best suited to resolve competing liberty and national security concerns continues unabated. While the Bush Administration's unilateralism in detaining suspected terrorists and authorizing secret surveillance initially raised separation of powers concerns, the Obama Administration's aggressive use of drone strikes to target suspected terrorists, with little oversight, demonstrates how salient these questions remain. Congress frequently lacks the information or incentive to oversee executive national security actions that implicate individual rights. Meanwhile, courts often decline to review counterterrorism practices challenged as violations of constitutional rights out of concern for state secrets or institutional competence. (1)

These limitations on traditional external checks on the executive-Congress and the courts--have led to increased academic interest in potential checks within the executive branch. Many legal scholars have argued that executive branch institutions supply, or ought to supply, an alternative constraint on executive national security power. Some argue that these institutions have comparative advantages over courts or Congress in addressing rights concerns; others characterize them as a second-best option necessitated by congressional enfeeblement and judicial abdication.

Thus, Neal Katyal argues that institutions within the executive branch can provide for the "internal separation of powers" in the foreign policy arena and champions bureaucracy as a check on presidential power. (2) Samuel Issacharoff and Richard Pildes argue that internal dissension within the executive branch has historically protected civil liberties in wartime. (3) Dawn Johnsen advocates that legal advisers within the executive branch serve to constrain unlawful executive action. (4) Others contend that internal executive mechanisms have comparative advantages over judicial review: for instance, Gillian Metzger observes that such mechanisms can operate ex ante and continuously, rather than solely in response to justiciable challenges or problems that generate congressional attention, and argues that the policy recommendations of executive institutions may face less resistance than external critiques. (5) Moreover, outside the United States, legal scholars also point to executive oversight institutions as necessary to mitigate inadequate judicial review of state national security activities. (6)

For many of these scholars, the protection of individual rights is a key concern, if not the driving force, behind separation of powers concerns. (7) Constitutional theorists (and the Supreme Court) have long considered the protection of liberty to be at the core of the constitutional separation of powers. (8) Of course, checking executive power does not always align with protecting individual rights: an executive may prefer a more rights-protective national security policy than Congress, as in President Obama's preference for trying certain terrorist suspects in U.S. civilian courts. Nonetheless, many of the most expansive assertions of executive national security power in recent years have come precisely in the context of policies curtailing individual rights, and the internal separation of powers discourse has often responded to concerns over individual rights.

Despite the development of this substantial theoretical literature, the post-9/11 internal separation of powers discussion has mostly taken place at a high level of generality. Few have examined, in any depth, how internal institutions have functioned in practice to check executive authority or protect civil liberties. Apart from extensive debate over the Justice Department Office of Legal Counsel (OLC), (9) the existing literature rarely explores whether the actual practices of executive oversight mechanisms support the theoretical benefits that many have suggested.

Even more surprisingly, the discussion of internal separation of powers has largely overlooked Inspectors General (IGs). Congress created IGs, which now exist in over fifty federal agencies, for the explicit purpose of monitoring agencies. Moreover, IGs in several agencies charged with national security responsibilities are squarely addressing individual rights violations. Nonetheless, very little scholarship to date has focused on the role of IGs in monitoring or protecting individual rights. Jack Goldsmith's recent account of presidential accountability mechanisms is an important exception, describing the CIA IG's review of extreme interrogations as an example of how IGs can constrain the President, (10) while Ryan Check and John Radsan provide a historical discussion of the CIA IG predating the release of the interrogations report. (11) Apart from these accounts, others have briefly noted the institutional potential of IGs or the significance of individual investigations without examining actual national security IG reviews in any depth. (12) In fact, many proponents of internal executive mechanisms dismiss IGs as focused narrowly on fraud and mismanagement, (13) or they repeat the now-dated claim of public administration scholar Paul Light that IGs address rule-based compliance without engaging broader conceptions of accountability. (14)

This Article fills that gap by probing how IGs have actually functioned in protecting individual rights. (15) Drawing on five case studies of IG reviews in four different federal agencies, I conclude that in certain cases IGs played a surprisingly significant role in protecting rights. At their strongest, IG reviews provided impressive transparency on national security practices, identified violations of the law that had escaped judicial review, and even challenged government conduct where existing law was ambiguous or undeveloped. For instance, the Department of Justice IG challenged the prolonged detentions of immigrants after the September 11 attacks even though these detentions were arguably legal: courts had not decided whether the government could detain aliens for investigative purposes past a statutory removal period, and the elite Office of Legal Counsel had sanctioned such detentions. The IG later exposed the FBI's widespread abuse of a covert investigative tool known as "exigent letters" at a time when no private person would have had the knowledge, standing, and incentive to sue over the practice; the investigation led the FBI to terminate the practice altogether. And the CIA IG revealed excesses in CIA interrogations of detainees at a time when the program was secret--reportedly influencing the OLC to temporarily withdraw legal advice sanctioning coercive interrogations and still later influencing Attorney General Eric Holder to reopen criminal investigations into detainee abuse. These successes challenge a court-centric view of rights enforcement and call attention to the potential of executive institutions to protect rights even in the challenging context of national security.

At the same time, the IG reviews discussed here also displayed important limitations. Even the strongest reviews rarely led to individual relief for most victims, repercussions for high-level executive officials, or significant rights-protective constraints on agency discretion. Moreover, IG reviews varied significantly: while some exhibited independence and a willingness to critique executive national security conduct, others faced obstruction or lacked rigor. In the end, IGs can help protect individual rights where courts and other forms of oversight are absent or unavailing but simply cannot compensate for inadequate external review.

In Part I, I describe the features that make IGs potentially more powerful than other executive oversight institutions, including their institutionalized relationship with Congress and broad investigative powers. I also describe how, despite a statutory mandate centered on investigating abuse and mismanagement in government, certain IGs are now directly involved in investigating national security policies curtailing individual rights.

Part II turns to the actual performance of national security IG reviews of individual rights. I describe five IG investigations at the Department of Justice, Central Intelligence Agency, Department of Homeland Security, and Department of Defense addressing: the treatment of post-September 11 detainees; the FBI's use of National Security Letters; the detention and interrogation of suspected terrorists abroad; the rendition of Maher Arar, a Canadian citizen, to Syria; and the military's monitoring of domestic protests. These reviews showed striking differences in rigor and independence, presenting an important puzzle for future research: why institutions with nearly identical mandates and legal powers have performed so...

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