The following is a guest post by Samuel Rascoff, an assistant professor at New York University School of Law, was Director of Intelligence Analysis for the New York City Police Department from 2006 to 2008. His article, “Domesticating Intelligence,” appears in the current volume of the Southern California Law Review. The opinions expressed are his own.
The nation’s intelligence apparatus continues to mushroom, flush with sustained post-9/11 budget increases, creating a state within a state. In what a series of recent reports in the Washington Post refers to as Top Secret America, contractors and officials working in a vast array of suburban office parks populate a government behemoth in which inefficiencies and redundancies are rife, transparency is scant, and meaningful oversight is impossible.
The specter of massive invasions of privacy and basic rights looms larger than ever. But, the man awaiting Senate confirmation to be the latest Director of National Intelligence, Lt. Gen. (Ret.) James Clapper, could change all that.
The DNI position was created five years ago to address previous intelligence failures and manage the sprawling intelligence bureaucracy. Unfortunately, it is widely regarded as lacking the budgetary and political clout to fulfill the much-needed mission. So, failure seems inevitable. But it doesn’t have to be.
One important solution to our intelligence woes is hiding in plain sight. Simply put, we should subject our intelligence and national security programs to the same cost-benefit analysis that we have applied for a generation to all of our domestic agencies, from the FDA to the EPA. The best national intelligence is rational intelligence, and the tools are at hand to achieve that.
Cost-benefit analysis – predicated on the simple and appealing idea that government policies ought to produce more benefit than harm – came to play a central role a generation ago with President Reagan’s Executive Order 12,291. Subsequent presidents from both parties have tweaked that order, but its core purpose has been retained ever since. It empowers an obscure but enormously consequential office within the Office of Management and Budget to assess the value all major proposed agency rules and then supervise them once they are in place.