Outsourcing intelligence, while not a recent phenomenon, has become more commonplace in the face of increased operations and fiscal pressure since the terror attacks of Sept. 11, 2001. While outsourcing has many benefits, it also brings certain general difficulties. As outsourcing decisions continue, it is critical that lawmakers understand the policy and legal implications of such choices.
On December 6, 2007, the Central Intelligence Agency publicly disclosed that in 2005 it had destroyed videotapes of CIA interrogations of alleged terrorist Abu Zubaydah conducted in 2002 and asserted that the destruction was “in line with the law.” The disclosure resulted in calls for congressional investigations; a motion for contempt in a Freedom of Information Act (FOIA) suit by the American Civil Liberties Union (ACLU); emergency motions in Guantánamo detainee cases; questions about the case of Zacharias Moussaoui; and an angry op-ed from the chairmen of the 9/11 Commission. The crux of these public reactions – as with the criminal investigation that resulted – was primarily the narrow issue whether the destruction of the tapes was illegal because they were relevant to pending or foreseeable cases or investigations.
The practical consequence of the Constitutional Court’s balancing approach to maintain both security and liberty has been a shifting jurisprudence, a fact that is bound to buoy and bother American conservatives and progressives in equal measure. There is something in the Court’s cases for both camps. Before 9/11, the Court deferred to the legislature’s attempts at promoting security. This inclination, however, changed dramatically in the post-9/11 period. In a string of cases the Court has consistently invalidated national security legislation for failing to adequately take account of constitutionally protected liberty interests.