Cardozo Law Review








This article, which was prepared for a spring 2007 conference at Cardozo Law School on "The Domestic Commander in Chief," considers constitutional and policy questions regarding congressional oversight of national security activities. The article focuses on what I call an "information funnel" approach. Such an approach involves funneling information only to discrete groups of people. For example, statutory provisions require that intelligence programs be shared with the congressional intelligence committees. Other statutory provisions permit certain narrowly defined covert actions to be reported only to the congressional leadership. The intended benefits of funneling are intuitive. Funneling plainly is directed toward balancing the respective advantages of secrecy and openness. It demands some inter-branch knowledge sharing without requiring full public or even full congressional access. This article agrees that funneling is a theoretically and practically important means of reconciling secrecy and openness needs but contends that funneling has not, in fact, been taken seriously enough. The purpose and utility of funneling have been under-explored, and funneling's propriety and implications thus are poorly understood. Questions remain, for example, over whether funneling requirements infringe on the separation of powers and thus need not always be obeyed. And it is uncertain what if anything should follow from information funneling - whether, for example, those with whom information is shared should be able to take some action in response to what they learn. This article uses the recent controversy about warrantless surveillance by the National Security Agency as a jumping-off point to explore these questions. Specifically, the article focuses on information exchanges between Congress and the executive branch about the program. Part I examines these exchanges as well as inter-branch discussions about the same. It concludes that two major problems that these incidents reflect are widespread uncertainty as to whether Congress constitutionally may force the President to disclose information and a lack of careful consideration as to how any information funneling requirements should work. Part II lays a theoretical foundation for improving governing statutes and congressional rules. Part II(A) explains that Congress has the constitutional authority to set information-sharing requirements between the executive branch and itself. Part II(B) discusses the complicated relationships between the respective benefits of secrecy and openness, an understanding of which should guide information sharing rules. Building on Part II's theoretical foundations, Part III suggests some answers to the questions raised in Part I as to how information funneling requirements should work.


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