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

• Author: Sinnar, Shirin
• Position: III. Assessing IG Rights Oversight through Conclusion, with footnotes, p. 1055-1086

3. ASSESSING IG RIGHTS OVERSIGHT

   In this Part, I explore how the five IG reviews described above addressed individual rights. I first discuss what it means to protect individual rights in the national security context, identifying five dimensions of rights oversight that are consistent with IGs' broad statutory mandate. Second, I analyze how IG reviews in fact contributed to these five dimensions of rights oversight. I conclude that while IG reviews varied significantly, several reviews created significant transparency on national security conduct, identified violations of the law that escaped judicial review, and even contested government restrictions on liberty where existing law was sparse or ambiguous. Certain reviews led agencies to end the abuses that were documented or to significantly reform their procedures. Yet even stronger reviews largely did not call for, nor did they result in, remedies for most victims, repercussions for high-level executive officials, or significant rights-protective constraints on agency discretion. As a whole, these cases suggest the strengths and limitations of IG rights oversight: IGs are well suited to increase transparency, evaluate the propriety of national security conduct, and reform internal procedures; on the other hand, their independence can be undermined, they are ill positioned to determine violations of constitutional rights, and they depend on political actors to enforce recommendations.

   1. Five Dimensions of Rights Oversight

      While the internal separation of powers literature is often concerned with protecting individual rights against an overreaching executive, the literature tells us little about how internal institutions should protect individual rights. My normative premise is that an ideal system of "rights oversight" in the national security context should address at least five objectives: (1) increasing the transparency of national security practices; (2) identifying rights violations and wrongful government conduct, whether or not that conduct contravenes existing law; (3) providing relief for victims of abuses; (4) holding government officials accountable for wrongful conduct abridging rights; and (5) revising agency rules to prevent future abuses. As I discuss further below, legal scholars often identify these goals (individually or in some combination) as the goal of judicial review or review by other institutions designed to protect individual rights. In my view, an internal institution may be valuable in contributing to rights protection even if it does not address all five of these dimensions, so long as the overall structure of rights oversight addresses the whole. (194) On the other hand, if the question is whether a particular executive mechanism can compensate for inadequate external review by institutions that we expect to perform the full range of oversight functions, such as courts, then it is important to assess that institution's contributions to all five dimensions.

      Of course, the relative priority of these goals may be contested, even among rights advocates, and an extensive literature debates effective remedial schemes for constitutional and civil rights violations. (195) Without resolving such disagreements here, I use this metric primarily to describe how IGs contributed to varying facets of rights protection and where they fell short.

      All five of these dimensions are consistent with IGs' broad statutory mandates, though some are closer to IGs' core mandates. The Inspector General Act clearly envisioned IGs as mechanisms to increase transparency, identify serious problems in agencies, and recommend reforms. The statute does not specifically address individual relief for victims or accountability for individuals responsible for abuses (apart from criminal violations), though both of these functions fall within IGs' broad mandate to recommend "corrective action." (196) Importantly, IGs have only an advisory role: they can recommend corrective measures and monitor compliance, but they rely on agencies and Congress to implement reform.

      Increasing transparency. Perhaps the least controversial function of rights oversight is to provide enough information about national security conduct to enable external assessment. (197) Excessive secrecy allows abuses to go undetected and stymies assessment of whether the security benefits of a program justify burdens on individual rights. Congress, the public, and agencies themselves require information on the scope, effectiveness, and rights implications of national security programs. Moreover, the IG Act squarely mandates a transparency function for IGs, requiring them to keep agencies and Congress fully informed about serious problems in agencies and ordering agencies, in general, to make semiannual IG reports public. (198)

      Identifying rights violations and wrongful conduct. Where the object of concern is individual rights, an agency's compliance with laws or regulations put in place to protect rights is the logical starting point for evaluation. But in the national security context, legal doctrine itself might be underdeveloped as a result of procedural and substantive barriers to judicial review or because legislation lags behind fast-moving executive national security policymaking. (199) Thus, a focus on legal compliance alone might not adequately protect individual liberty or equality interests. IGs have a statutory obligation to report on serious problems, not just legal abuses, (200) permitting them to identify government conduct that unfairly harms individuals or constrains liberty even where the conduct does not violate existing law.

      Providing relief for victims. As scholars and courts have observed, providing remedies to victims of wrongful government conduct not only compensates victims--a traditional purpose of individual rights and remedies law--but also serves to acknowledge government responsibility for abuses, deter future misconduct, and restore victims' sense of inclusion in a social and political community. (201) Although IGs cannot order relief, they are statutorily required to recommend "corrective action" for abuses. (202) Such corrective action could include remedies for victims ranging from apologies or other symbolic gestures to financial compensation to case-specific "injunctive" relief, such as expungement of information from government databases, dismissal of indictments, or release from detention.

      Holding government officials accountable. Identifying and holding personally accountable the government decisionmakers and agents responsible for policies or conduct improperly curtailing rights can deter future abuse. Measures to promote individual accountability might range from, at a minimum, the stigma of being named in an IG review, to more serious employment measures (disciplinary investigations, suspensions, demotions, or dismissal), to referral for criminal prosecution. While IGs cannot order discipline, they can build a factual record on individual accountability and recommend that agencies adopt disciplinary measures, and they are also legally required to report to the Attorney General whenever they have reasonable grounds to suspect a violation of federal criminal law. (203)

      Revising agency rules to prevent future abuses. The ultimate objective of any system of oversight is to prevent future abuses. IGs can support prospective reform by recommending changes to agency managerial or oversight processes or new statutory or administrative substantive rules, such as heightened legal constraints on agency discretion. Such proposals fall within IGs' mandate to prevent future abuse by recommending policy changes and commenting on existing and proposed legislation and regulations. (204) Procedural reforms might include requiring higher-level approval of actions implicating rights, greater oversight by agency counsel, or improving agency databases or systems to enable better oversight. IGs can also recommend greater substantive constraints on agency discretion, such as the prohibition of a controversial practice or a requirement of ex ante judicial approval.

   2. How IG Reviews Addressed These Dimensions

      IG reviews contributed, to varying extents, to the five dimensions of rights oversight. Most notably, several reviews contributed significantly to the transparency of national security practices implicating rights, identified legal violations that escaped judicial review, and even criticized restrictions on liberty that did not violate existing law. IG reviews also helped end specific abuses, held mid- and lower-level officials accountable for violations, and reformed agency procedural rules. At the same time, however, even stronger reviews largely did not precipitate individual relief for most victims, consequences for senior agency leadership, or significant constraints on agency discretion.

      1. Increasing transparency

         Most of the IG reviews studied here disclosed significant new information about national security programs, and several created remarkable transparency on issues that were previously highly secret. IG reviews frequently brought to light information on civil liberties violations that had not surfaced through litigation or alternative forms of congressional oversight.

         Most notably, the DOJ IG's reviews of NSLs disclosed both the unprecedented extent to which the FBI relied on NSLs--information that public interest organizations had unsuccessfully sued to obtain (205) and that the FBI had "significantly understated" to Congress (206)--and the fact that the FBI had used exigent letters to bypass legal processes altogether. Legal and practical barriers made it almost impossible for such information to surface through other channels: a statutory "gag order" forbade NSL recipients from revealing the records requests, phone companies complying with exigent letters had no incentive to expose their circumvention of privacy laws, and targets of either practice...