VOLUME 129 JANUARY 2016 NUMBER 3 © 2016 by The Harvard Law Review Association ARTICLE PRESIDENTIAL INTELLIGENCE Samuel J. Rascoff CONTENTS INTRODUCTION ............................................................................................................................ 634 I. THE PRESIDENT AND THE INTELLIGENCE COMMUNITY: A BASELINE .............. 646 A. Analysis and Covert Action: Highly Presidentialized .................................................. 646 B. Organization and Budget: Somewhat Presidentialized ................................................ 648 C. Intelligence Collection: Weakly Presidentialized .......................................................... 651 II. THE EMERGENCE OF PRESIDENTIAL INTELLIGENCE ............................................. 659 A. The New Political Economy of Intelligence .................................................................. 660 1. Technology Firms and Economic Misalignment ...................................................... 662 2. Allies and Strategic Misalignment ............................................................................ 665 B. The Shape of Presidential Intelligence .......................................................................... 669 III. ASSESSING PRESIDENTIAL INTELLIGENCE ................................................................. 674 A. The Benefits of Presidential Intelligence ....................................................................... 674 1. Strategically Sound Intelligence ................................................................................ 674 2. Accountable Intelligence ............................................................................................. 684 3. Rights-Regarding Intelligence .................................................................................... 688 B. Three Potential Downsides .............................................................................................. 692 1. Politicization ................................................................................................................ 692 2. Partisanship ................................................................................................................. 697 3. Abuse ............................................................................................................................. 702 IV. DESIGNING PRESIDENTIAL INTELLIGENCE ................................................................ 706 A. Presidential “Findings” for Intelligence Collection ..................................................... 706 B. Appointing Intelligence Officials ..................................................................................... 712 CONCLUSION ................................................................................................................................. 716 633 PRESIDENTIAL INTELLIGENCE Samuel J. Rascoff When scholars — especially legal academics — talk about intelligence oversight, they typically have in mind a set of processes and institutions designed to deter and detect illegality and abuse. In this Article, I focus on another sense of intelligence oversight and a different institutional actor capable of providing it. The kind of oversight that I describe and endorse is distinguished by its concern with promoting effective intelligence collection while seeking to minimize a wide range of costs, including diplomatic blowback, economic harm to American firms, and intrusiveness that threatens privacy rights. The institution that has begun to furnish this more holistic sort of oversight, and that enjoys conspicuous advantage over preexisting bodies in doing so, is the President, aided by his staff (including those serving on the National Security Council). Pressured by a constellation of prominent interest group actors, including allied governments and technology firms, the President has begun to weigh in on surveillance policy and to shape the metes and bounds of intelligence collection in a systematic fashion. This development — which I call presidential intelligence — bears a family resemblance to presidential administration, the turn to centralized, political control that has dominated the scholarship and practice of administrative law for over a generation. In this Article, I offer a descriptive account of the rise of presidential intelligence, a qualified normative defense of its value (as an addition to, rather than a replacement of, existing oversight bodies), and a set of prescriptions for how to design institutions in order to realize its full potential. INTRODUCTION or a generation we have “live[d] . in an era of presidential ad- Fministration.”1 Whether exercising power directly or through White House units like the Office of Information and Regulatory Af- fairs2 (OIRA), Presidents of both parties, employing a variety of mech- anisms and summoning a range of justifications,3 have sought to leave ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Professor of Law, Faculty Director, Center on Law and Security, New York University School of Law. I would like to thank William Banks, Rachel Barkow, Gabriella Blum, Philip Bobbitt, Robert Chesney, Noah Feldman, John Ferejohn, Zachary Goldman, Jack Goldsmith, Ryan Goodman, Philip Heymann, Gavin Hood, Aziz Huq, Samuel Issacharoff, Michael Leiter, Daryl Levinson, Richard Morgan, Trevor Morrison, Matthew Olsen, Richard Pildes, David Pozen, Richard Revesz, and Stephen Slick as well as workshop participants at New York University School of Law, Columbia Law School, and Hofstra Law School for helpful comments and sugges- tions. David Hoffman, Tyler Infinger, Nishi Kumar, Stephanie Spies, and Timothy Sprague pro- vided excellent research assistance. Gretchen Feltes furnished characteristically superb library assistance. 1 Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2246 (2001). 2 OIRA is a component of the Office of Management and Budget (OMB), which functions as a clearinghouse for major rules. See generally RICHARD L. REVESZ & MICHAEL A. LIVERMORE, RETAKING RATIONALITY: HOW COST-BENEFIT ANALYSIS CAN BETTER PROTECT THE ENVIRONMENT AND OUR HEALTH (2008). 3 See City of Arlington v. FCC, 133 S. Ct. 1863, 1878–79 (2013) (Roberts, C.J., dissenting). 634 2016] PRESIDENTIAL INTELLIGENCE 635 an imprint on the regulatory state.4 Presidential administration serves not only as a font of centralized power and control, but also as a source of democratic accountability for an administrative state peren- nially anxious about its legitimacy. The tectonic shift toward presiden- tial control of agencies has reverberated throughout the federal bu- reaucracy, including a large swath of the national security state5 — with the striking exception of the so-called “intelligence community.”6 A major reason for intelligence’s exceptionality is historical. In the aftermath of Watergate and the intelligence scandals exposed by the Church7 and Pike8 Committees, the reigning assumption was that, of the three branches of government that might exercise meaningful over- sight of the intelligence apparatus, the possibility of heightened presi- dential authority ought to be taken off the table. That is because the architects of the new oversight took presidential control as a given and saw in the White House–intelligence complex the capacity for tyranny and abuse. To resist executive dominance, they chose to empower the other branches of government and to interpose a range of traditional, as well as internal, separation of powers checks. These checks include the Foreign Intelligence Surveillance Court9 (FISC), specialized con- gressional oversight committees,10 inspectors general within the vari- ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 4 Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 5–7 (1994). 5 See Aziz Huq, Imperial March, DEMOCRACY (Winter 2008), http://www.democracyjournal .org/7/6571.php [http://perma.cc/6GHR-ENEC] (“From one angle, the Bush Administration’s free- wheeling unilateralism when it comes to interrogation and detention is merely the dark side of Clinton’s exuberant, and often celebrated, unilateral use of executive agencies.”). A similar claim could be sustained with respect to President Obama’s significant involvement in drone strikes. See generally DANIEL KLAIDMAN, KILL OR CAPTURE: THE WAR ON TERROR AND THE SOUL OF THE OBAMA PRESIDENCY (2012). 6 See Member Agencies, INTELLIGENCE.GOV, https://www.intelligencecareers.gov/icmembers .html [https://perma.cc/2FRZ-E9W7] (listing the seventeen separate organizations that form the “Intelligence Community”). 7 S. Res. 21, 94th Cong. (1975) (establishing a “select committee of the Senate to conduct an investigation and study with respect to intelligence activities carried out by or on behalf of the Federal Government,” later called the “Church Committee” after its chairman, Senator Frank Church). For the report issued by the Church Committee, see FINAL REPORT OF THE SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLI- GENCE ACTIVITIES, S. REP. NO. 94-755 (1976). 8 H.R. Res. 138, 94th Cong. (1975), replaced and expanded by H.R. Res. 591, 94th Cong. (1975) (establishing a committee that came to be known as the “Pike Committee” after its chair- man, Representative Otis Pike, to parallel the Senate’s “Church Committee”). For the report is- sued by the Pike Committee, see RECOMMENDATIONS OF THE FINAL REPORT OF THE HOUSE SELECT COMMITTEE ON INTELLIGENCE,