Judicial and scholarly discussions about checks and balances almost always focus on actions and reactions by domestic actors. At least in the intelligence area, however, foreign actors can have direct and indirect influences on U.S. checks and balances. New national security challenges require increased cooperation with foreign intelligence partners. Leaks and voluntary transparency mean far more information is available publicly about intelligence missions. And robust legal rules now bind the U.S. and other Western intelligence services.
These changes create opportunities for foreign leaders, citizens, corporations, and peer intelligence services to affect the quantum of power within the Executive or the allocation of power among the three branches of U.S. government. First, some of these foreign influences can trigger the traditional operation of checks and balances in the U.S. system. Second, these foreign actions simulate some of the effects produced by U.S. checks and balances, even if they do not stimulate the U.S. system to act endogenously. Whether one views these foreign constraints as positive or detrimental, understanding them is critical to an informed conversation about the extent to which the Executive truly is unfettered in the national security arena.
Citation
Ashley S. Deeks, Checks and Balances from Abroad, 83 University of Chicago Law Review, 65–88 (2016).