Intelligence Services, Peer Constraints, and the Law
UVA Law Faculty Affiliations
Widespread disclosures about Western intelligence activities have shone a harsh spotlight on intelligence oversight. Many now doubt that the best-known overseers—legislatures and courts—can provide effective oversight to constrain and modulate intelligence collection and covert action. Yet the extent to which intelligence communities are and can be constrained is a critical question in today’s debates about counter-terrorism and the privacy-security balance.
This article identifies and analyzes for the first time another important, law-driven source of constraint on intelligence services: their peers. Through various mechanisms—formal and informal, public and private—one state’s intelligence service affects how another intelligence service conducts interrogation, detention, and surveillance; the amount and type of intelligence the other service receives; and, less tangibly, the way in which the other service views its own legal obligations. These constraints complement the more public, transparent, and expected sources of oversight and offer unique benefits that include a granular understanding of operations and an ability to minimize the politicization that frequently accompanies intelligence critiques.
Conventional wisdom suggests that interactions among intelligence services allow each actor to engage in legally prohibited actions with impunity and without accountability. This article tilts the prism to argue that, in some circumstances, these relationships impose peer constraints that result in increased individual rights protections. Peer constraints are likely to become more prevalent as intelligence services face more statutory and judicial regulation, more leaks, and more litigation. As a result, it is critical to understand when, where, and how these constraints can and do operate. This article seeks to initiate and inform that conversation.