Emily Berman


Scholars have long recognized that a Federal Bureau of Investigation wielding robust domestic intelligence-collection powers poses a threat to civil liberties. Yet the FBI’s post-9/11 mandate to prevent terrorist attacks (not merely investigate completed attacks) demands that the agency engage in broad intelligence-collection activities within the United States— activities that can threaten fundamental freedoms. This Article argues that strategies derived from administrative law principles can help alleviate the tendency of threat-prevention efforts to erode civil liberties. The fundamental problem this Article tackles is that the traditional governance mechanisms we rely upon to protect individual rights are ineffective in the domestic intelligence collection realm. This failure of traditional checks stems from, first, the absence of practical constraints to channel the enormous discretion that the Justice Department and the FBI enjoy in determining the scope and nature of the FBI’s domestic intelligence-collection activities; second, the lack of judicial or political checks on these activities, resulting in a deficit of democratic legitimacy and accountability; and third, the risk that the FBI’s singular focus on terrorism prevention will overwhelm rights-protection concerns. Drawing on principles of administrative law, this Article explains how regulatory strategies can be employed to improve governance of domestic intelligence gathering. It recommends imposing procedural requirements on the exercise of discretion, facilitating meaningful pluralist input into relevant decision making processes, and augmenting the attention given to civil liberties concerns by requiring the Justice Department to prepare Civil Liberties Impact Statements and by including in the process an entity whose primary goal is the protection of civil liberties. These governance reforms will prompt domestic intelligence regulation to take account of civil liberties while preserving the ability of law enforcement to pursue security.



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