Secrecy, National Security and the Vindication of Constitutional Law
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Secrecy, National Security and the Vindication of Constitutional Law

Edited by David Cole, Federico Fabbrini and Arianna Vedaschi

Virtually every nation has had to confront tensions between the rule-of-law demands for transparency and accountability and the need for confidentiality with respect to terrorism and national security. This book provides a global and comparative overview of the implications of governmental secrecy in a variety of contexts. Expert contributors from around the world discuss the dilemmas posed by the necessity for – and evils of – secrecy, and assess constitutional mechanisms for checking the abuse of secrecy by national and international institutions in the field of counter-terrorism.
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Chapter 6: Direct and indirect access to intelligence information: lessons in legislative oversight from the United States and Canada

Kathleen Clark and Nino Lomjaria

Extract

In theory, legislatures can perform critical oversight functions regarding nearly all government agencies, including those that conduct intelligence activities, if they have access to information about those activities. Legislators gain access to information in several different ways: directly when information is provided to the legislators themselves; or indirectly when the information is provided to their staff members, to legislative offices that conduct studies for the legislature, or to non-legislative offices that report to the legislature. This chapter examines legislative access to intelligence information in the United States and Canada – two countries that have taken radically different approaches to intelligence accountability. Section 1 describes how, after intelligence abuse scandals erupted in the mid-1970s, the US Congress increased its access to intelligence information from limited direct access of legislators themselves to expanded access through all four of these methods. While this chapter highlights some of the limitations on Congressional oversight, Congress has the ability to engage in relatively robust review of intelligence activities. Section 2 explains that the Canadian Parliament generally obtains information about intelligence activities only when non-legislative offices provide it with reports, and those reports generally omit classified information. As a result, Canadian parliamentarians have generally had no more access to intelligence information than the Canadian public at large, limiting their ability to assess and control the government’s intelligence activities. Congress performs most of its work through its committees. Until the mid-1970s, congressional oversight of intelligence was handled by intel- ligence subcommittees of the House and Senate Armed Services and Appropriations Committees.

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