Intelligence Oversight after Slaughter

Interbranch oversight is essential to ensuring that U.S. intelligence agencies do not abuse their extraordinary surveillance powers in a manner that violates Americans' civil rights and civil liberties. However, structural challenges make such oversight difficult. Members of Congress have weak incentives to perform robust oversight, difficulty obtaining and using classified information, and operate within a committee structure that is better suited to facilitating the intelligence agencies' than constraining it. The judiciary is likewise hamstrung by precedents regarding standing, the state secrets doctrine, and substantive deference to the executive branch on matters of national security that make judicial oversight of intelligence agencies exceedingly difficult. Congress has compensated for these weaknesses in two ways. First, it has created a range of executive branch offices and agencies responsible for performing intra-branch intelligence oversight. These offices differ in composition and function, but all of them are intended to serve as an internal check on the intelligence agencies. Second, it has increasingly relied upon a "hidden architecture" of congressional intelligence oversight to fill gaps left by the congressional intelligence committees and the judiciary. The entities comprising this architecture-in particular the congressional judiciary committees, the Government Accountability Office, and the public-increasingly perform an intelligence oversight function that is formally restricted to the congressional intelligence committees. Together, these two mechanisms have helped compensate for the weaknesses of interbranch intelligence oversight. The Supreme Court's decision in Trump v. Slaughter threatens to disrupt this delicate balance. Because Congress no longer has the power to create independent or quasi-independent executive branch entities, intra-executive-branch intelligence oversight will become less reliable. Accordingly, it is essential that Congress move to fill the gap in intelligence oversight created by Slaughter. Doing so will require Congress to rely more heavily on its hidden architecture of intelligence oversight.