For more than thirty years, our country has struggled to delineate the boundaries of domestic intelligence operations. Americans tend to regard those government components exercising national security powers within the borders of the United States (whether under clear authority or not) with an inherent suspicion bolstered by historical experience. We tolerate the existence of such components but insist that they be highly regulated, particularly with respect to any activities that impinge upon civil society. Historical circumstances influence, but never erase, this regulatory imperative. Despite this imperative, components may occasionally escape regulation – at least for a time – because they are unknown, their missions remain mysterious or only partially understood, or because (intentionally or not) a convincing illusion of sufficient regulation is presented to the examining eye.
The Intelligence Reform and Terrorism Prevention Act of 2004 (the “Act”) effected one of the most significant changes since 1947 in the organization of the intelligence community. Title III of the Act reorganized the entire national security clearance system, although the subject received practically no attention in public discussion during the 9/11 Commission hearings. Because this change was not fully explored in either the House or Senate hearings or during floor debate, Title III includes contradictory provisions concerning the assignment of responsibilities for security clearance policies and procedures.
In two cases decided on June 28, 2004, the Supreme Court emphatically upheld the rule of law and the right of those being detained as part of the war on terrorism to have access to the courts. In Rasul v. Bush, the Court held that those being detained in Guantánamo Bay, Cuba are entitled to have a habeas corpus petition heard in federal court. In Hamdi v. Rumsfeld, the Justices declared, by an 8-to-1 margin, that an American citizen apprehended in a foreign country and held as an enemy combatant must be accorded due process, including a meaningful factual hearing on his status.