The Influence of the Constitutional Court on the Legal Framework for Intelligence Oversight in Poland

The paper aims to examine the role of the Constitutional Court in shaping the framework of oversight of intelligence agencies in Poland. The Court has been a guiding force for many of the major legislative changes affecting intelligence oversight. It is hypothesized that its overall impact on the system of intelligence law has been greater than that of many institutions with more direct responsibility for intelligence oversight. At the same time, neither the impact of the Court's jurisprudence on the field, nor its determinants, have been systematically studied. The influence of constitutional courts on the accountability system of intelligence services has not been the subject of separate studies so far. The case law of constitutional courts is often understood statically as part of the legal order. It is usually assumed that intelligence oversight and accountability is primarily the province of the political branches, i.e., the legislative and the executive. Yet the theoretical framework of rational choice institutionalism provides us with a number of reasons why those branches may be unwilling (or unable) to exercise their oversight authorities in an adequate manner: regulatory capture theory, information asymmetry politicization of intelligence services, electoral incentives, risk aversion, and indifference of public opinion. Moreover, the parliamentary majority does not wish to embarrass the government, while the opposition usually lacks effective instruments of oversight. Thus, we expect the common assumption of the primacy of the legislative and executive oversight to be wrong. Thus, we hypothesize that the void left by other institutions in the intelligence accountability system has made the Constitutional Court the primary institution of the intelligence accountability system, despite it not being originally envisioned as an element of such system, and lacking adequate oversight authorities. The objective of this paper aims to measure the impact of the Constitutional Court using a comprehensive and rigorous methodology, combining both qualitative and quantitative methods. On the qualitative side we plan to go beyond the analysis of the text and context of the Court's decisions and applicable legal norms, and to conduct interviews with the Court's former judges, legislators, and legal experts in the field. On the quantitative side, we will use innovative methods such as network analysis, natural language processing, and machine learning to analyze legislative texts, legislative history record, and judicial decisions to identify the indirect impact of the Court's decisions on subsequent decisionmaking.