Institutionalizing Rights in the National Security Executive

Abstract

The national security executive has grown explosively in size and power since September 11, 2001. This Article highlights a parallel development that has largely escaped notice: the rise in institutions within the executive branch charged with monitoring and protecting individual rights and liberties. Emerging out of dual political impulses to expand executive power and protect rights, these institutions have proliferated, and their paths have diverged. A civil rights office struggled for influence across multiple political administrations; an Inspector General exposed rights violations and triggered reform; a civil liberties board capitalized on the Snowden controversy to surmount presidential neglect but not partisan division. Together, these case studies suggest that internal rights oversight is constantly challenged; only with a rare confluence of leadership, design, and external political circumstances can these institutions succeed. From these accounts, the Article makes three claims on the challenges and constraints facing these institutions. First, rights-oversight institutions designed as “external reviewers,” rather than as “internal advisors,” may be better poised to reform policy. Second, both kinds of institutions face serious limitations in shaping executive legal interpretation on national security authority or the scope of legal rights. Third, these institutions are at perennial risk of mission drift — of shifting their attention from promoting rights to protecting national security. Ultimately, internal rights oversight plays a necessary but limited role in protecting rights at risk from the national security state.