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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.
* 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 suggestions. David Hoffman, Tyler Infinger, Nishi Kumar, Stephanie Spies, and Timothy Sprague provided excellent research assistance. Gretchen Feltes furnished characteristically superb library assistance.