Academic

Sepper on Intelligence Sharing Networks & Accountability

By Lawrence Solum

Elizabeth Sepper (Columbia Law School) has posted Democracy, Human Rights, and Intelligence Sharing (Texas International Law Journal, Vol. 46, 2010) on SSRN. Here is the abstract:

In this Article, the author explores the networks used by intelligence agencies to share intelligence and conduct joint operations with foreign counterparts worldwide. Understanding how these intelligence networks operate, the author argues, is imperative both for effective intelligence gathering and for a democratic society.

Characterized by secrecy, flexibility, and informality, intelligence sharing networks are constrained almost exclusively by a shared professional ethos, rather than law. According to the author, such an ethos can exert some degree of accountability to professional norms, but has been strained by the inclusion of less professional and often ruthless intelligence services in the network. Nonetheless, all such networks pose serious threat to the preservation of liberal democracies in that they essentially govern themselves. The very concept of democracy demands that an intelligence agency be held accountable to a democratic body or officials outside of the agency itself.

Yet, as this Article shows, few democratically elected officials are aware of intelligence sharing; and virtually no mechanism, other than self-regulation, provides oversight or accountability for any intelligence agency?s transnational activities. As a result, through their network ties, intelligence agencies that are expected to serve democratic interests have undermined foreign policy and circumvented safeguards established by domestic law and international treaties. The author argues that this serious gap in the rule of law must be filled and posits ways to render intelligence agencies more accountable to the democracies they purport to serve.

Full post as published by Legal Theory Blog on January 20, 2011 (boomark / email).