Intelligence and the Rise of Judicial Intervention, by Fred F. Manget By POLS 4396 December 3, 2012 Intelligence and the Rise of Judicial Intervention, by Fred F. Manget Summary Manget argues that contrary to public perceptions, the intelligence community is subjected to “laws and the authority of judges”.1 Federal judges do have a degree of “oversight” with respect to intelligence matters but in a limited way.2 According to Manget, there is a number of laws and, in particular, the US Constitution that confers upon Federal judges the authority to review and rule on legal issues involving intelligence matters…
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However, since the 1970s, federal judge’s review of intelligence matters has become increasingly more popular and as a result a “system of oversight” has emerged.3 There are primarily two reasons for the increase in judicial review of intelligence issues. Intelligence is no longer confined to foreign security issues and has become increasingly important to internal security. Secondly, intelligence matters have become increasingly intertwined with police matters and the judiciary is more willing to review police matters. Regardless of the increase in judicial review of intelligence issues, federal judges have an unenviable task. Federal judges and in rare cases, the US Supreme Court, are required to weigh and balance the sensitive nature of the information/intelligence and the necessity of revealing that information in a public trial to ensure a fair and just outcome and to protect the constitutional right to a fair trial and due process generally. Manget provides several examples of cases and claims before the federal courts in which a claimant in a civil trial or a defendant in a criminal trial requires the intelligence secrets to be revealed in order to ensure due process. For example, a defendant may need disclosure of intelligence documents to prove a defence that the crime with which he or she is charged was a result of an agreement made with the CIA or action taken at the request of the CIA. The federal judge seized of the matter will typically examine the requested document and determine the extent to which it is relevant for the defence. In many cases the discovery issue is heard in chambers and will not be the subject of public scrutiny. The judge will usually determine whether or not the intelligence is relevant to the defence, as well as whether it can be disclosed and the extent to which it can be disclosed. There are several statues that confer jurisdiction of intelligence matters and activities on the federal courts and thus the federal judiciary. For example the Foreign Intelligence Surveillance Act (FISA) 1978 as subsequently amended, makes provision for the electronic surveillance and the search of persons in the US who are believed to be involved in espionage or international terrorism on behalf of a foreign agent. In order to conduct FISA searches and surveillances, intelligence agents must first receive permission from a specially constituted federal court. Manget, therefore, concludes that although federal judge oversight of intelligence matters if very limited, it is still a “powerful” factor of influence.4 The limitations, however, are necessary for ensuring that the intelligence community works with the level of “secrecy” necessary for effectively bolstering national security.5 The level of judicial review permitted is not only necessary for supporting democracy, but also for safeguarding against the kind of excessive security that threatens the legitimacy of a democratic government. Judicial review is also necessary for reducing the risk of abuse by government officials with respect to the fundamental human rights of citizens. Analysis
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(“Intel Chapter 25 in textbook Johnson, Judicial Review Book Report/”, n.d.)
Retrieved from https://studentshare.org/history/1463799-intel-chapter
(Intel Chapter 25 in Textbook Johnson, Judicial Review Book Report/)
“Intel Chapter 25 in Textbook Johnson, Judicial Review Book Report/”, n.d. https://studentshare.org/history/1463799-intel-chapter.
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