96 Cal. L. Rev. 901 (2008)
All the President's Spies: Private-Public Intelligence Partnerships in the War on Terror

handle is hein.journals/calr96 and id is 909 raw text is: All the President's Spies: Private-Public
Intelligence Partnerships in the War on
Terror
Jon D. Michaelst
INTRODUCTION
The War on Terror has dramatically increased the nation's need for
intelligence, and the federal government is increasingly relying, as it does in so
many other contexts, on private actors to deliver that information. While
private-public collaboration in intelligence gathering is not new, what is novel
today-and what drives this inquiry-is that some of these collaborations are
orchestrated around handshakes rather than legal formalities, such as search
warrants, and may be arranged this way to evade oversight and, at times, to
defy the law.
Unable to target or repel terrorists using conventional military tactics and
munitions alone, the United States is acutely aware that today's pivotal
battlefield is an informational one. Teams of U.S. intelligence agents, acting as
eavesdroppers, infiltrators, interrogators, and data-miners, must race against the
clock to anticipate terrorists' actions, frustrate their missions, and dismantle
their infrastructure.' Because the U.S. government does not know the who,
Copyright © 2008 California Law Review, Inc. California Law Review, Inc. (CLR) is a
California nonprofit corporation. CLR and the authors are solely responsible for the content of
their publications.
t   Acting Professor, UCLA School of Law. Law Clerk to the Hon. David H. Souter, U.S.
Supreme Court, 2005-06. Law Clerk to the Hon. Guido Calabresi, U.S. Court of Appeals for the
Second Circuit, 2004-05. J.D., Yale Law School, 2003. The author wishes to thank Bruce
Ackerman, Guido Calabresi, Sewell Chan, Josh Civin, Patrick Curran, Nestor Davidson, Jack
Goldsmith, Oona Hathaway, Robert Hockett, Orin Kerr, Allison Orr Larsen, Marty Lederman,
Ronald Lee, Jerry Mashaw, Raj Nayak, Anne Joseph O'Connell, Susan Rose-Ackerman, Steven
Schooner, Paul Schwartz, Nikhil Shanbhag, Reva Siegel, Alexander Slater, David Sklansky,
Jeffrey Smith, Daniel Solove, Jake Sullivan, David Super, and Meredith Desautels and Marc
Pilotin of the California Law Review. Special thanks, as always, to Toni Michaels. The views
expressed herein are solely those of the author.
1. See PHILIP B. HEYMANN, TERRORISM, FREEDOM, AND SECURITY: WINNING WITHOUT
WAR 61-65 (2003) (noting the importance of tactical and strategic intelligence, which allow[s]
prevention by incapacitating a critical group of the terrorists or denying them the resources or

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