New York University Public Law and Legal Theory Working Papers

Document Type

Article

Abstract

Though it lags behind the privatization of military services, the privatization of intelligence has expanded dramatically with the growth in intelligence activities following the 11 September 2001 attacks on the United States. Controversy over government reliance on outsourcing in this area frequently coalesces around issues of cost, brain-drain, and periodic allegations of self-dealing and other forms of corruption. More recently, however, the confirmation by the Director of the CIA that contractors have probably participated in waterboarding of detainees at CIA interrogation facilities has sparked a renewed debate over what activities it is appropriate to delegate to contractors, and what activities should remain inherently governmental. (This is, of course, separate from whether such activities should be carried out in the first place - a topic that is not the focus of this paper.) The paper surveys the manner in which U.S. intelligence functions have been outsourced in collection activities such as electronic surveillance, rendition, and interrogation, as well as the growing reliance on private actors for analysis. It then turns to accountability issues raised by this new phenomenon, focusing on three areas: first, the necessary secrecy that limits oversight of intelligence and thus militates against further removal of such activities from democratic structures; secondly, the different incentives that exist for private rather than public employees; and finally the uncertainty as to what functions should be regarded as inherently governmental and thus inappropriate for delegation to private actors.

Date of Authorship for this Version

July 2008