Texas Law Review, Volume 88, Number 7, June 2010 Page: 1,415

                                
It Came from Beneath the Twilight Zone

and personnel from throughout the Executive Branch.89 Yet "[w]ith World
War II, which marked in so many ways the modernization of the American
national government, this distinctly premodern pattern of intermittent public-
private efforts was broken, and a permanent, specialized domestic intelli-
gence capacity was institutionalized at the federal level."90
The growth of an intelligence infrastructure equips the Executive
Branch with a permanent arsenal of powerful tools.91 The arsenal adds sub-
stance to the structural advantages intrinsic in the President's "doer" role.92
Absent a permanent and continuously funded infrastructure, intelligence
gathering is obviously more difficult to achieve without explicit congres-
sional sanction and funding.93 The difficulty is all the greater in the face of
an explicit congressional prohibition, making it harder, for example, for the
President to allocate funds based on vaguely worded appropriations.94 Yet,
like the effective creation of a large standing army, the creation of a vast and
permanent intelligence infrastructure adds substance to the President's theo-
retical capacity to go it alone.95
As noted, exclusivists infer from the President's physical capacity to
"go it alone" by wiretapping in zone two or zone three that he has a legal pre-
rogative to do so.96 Yet the latter need not follow from the former. To the
89. Id. at 22-26. An important caveat to this observation is that institutionalized intelligence
apparatus arose in the military during the Civil War and in the FBI's predecessor, the Bureau of
Intelligence (BOI) during the infamous Palmer Raid period after World War I. While these events
were important precursors to the modem intelligence bureaucracy, they were also products of their
times insofar as the infrastructure in each case was at least partly dismantled for a period-in the
case of the Civil War because the war ended, in the case of the Palmer Raids because of the disgrace
that they brought to the BOI. Id. at 19-21, 27-30; David Williams, The Bureau of Investigation and
its Critics 1919-1921: The Origins of Federal Political Surveillance, 68 J. AM. HIST. 560, 560-61,
579 (1981). The post-Palmer Raids period is particularly interesting as it seems to mark a gray area
between the worlds of interim and permanent intelligence infrastructure-while the BOI formally
shut down surveillance operations not directly related to criminal investigations, between 1924 and
1936 it "hired paid informers to collect information on the activities of liberal and radical political
and labor organizations." Id. at 560, 578.
90. MORGAN, supra note 87, at 16; see also GARRY WILLS, BOMB POWER: THE MODERN
PRESIDENCY AND THE NATIONAL SECURITY STATE 57, 59-61, 82-83, 98 (explaining that a
permanent "national security state" arose after World War II, including a permanent surveillance
infrastructure).
91. See Marshall, supra note 84, at 515-17 (noting that the power of the Executive Branch is
heightened by its control of intelligence gathering and other technological and human resources).
92. Id.
93. See, e.g., WILLS, supra note 90, at 99-102 (explaining that the Constitution seeks to check
Executive Branch power through Congress's control over funding and that aspects of the national
security state enable the Executive Branch to circumvent this check).
94. See, e.g., HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION 52-53 (1990)
(recounting congressional efforts to curtail military activities through explicit funding restrictions).
95. See supra notes 91-92; see also, e.g., KOH, supra note 94, at 52-53 (detailing examples of
military activities that continued to be funded and supported by the Executive Branch despite
congressional prohibitions on such funding and support).
96. See infra subpart II(A) (explaining that exclusivists often infer from the President's
demonstrated structural capacity to act without or against statutory authority that he has a legal right
to so act).

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