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Tag Archives: FISA

Appellees File Supplemental Brief in Klayman v. Obama

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Monday, November 10, 2014 at 5:55 PM

A few days after oral argument before a three-judge panel of the D.C. Circuit last week, Larry Klayman and company filed a supplemental brief, citing a desire to more fully address questions as to how their Fourth Amendment rights were being violated in light of the government’s contention that it had not accessed their calls for reasons beyond . . .
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The FISA Court and Article III: A Surreply to Orin

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Tuesday, August 5, 2014 at 9:31 AM

As I suspected it would, the exchange between my friend Orin Kerr and me on the constitutionality of the appellate review provisions in the Senate version of the USA FREEDOM Act has morphed into a broader conversation about whether the FISA Court itself is consistent with Article III. Consider the three major points of Orin’s reply to . . .
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Article III, Appellate Review, and the Leahy Bill: A Response to Orin Kerr

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Thursday, July 31, 2014 at 10:54 AM

Orin’s post from yesterday afternoon wonders whether the Leahy bill’s provision for “certification” of decisions by the FISA Court to the FISA Court of Review (and from there to the Supreme Court) violates Article III’s case-or-controversy requirement. In effect, Orin’s charge is that, at the point of certification, the FISA Court is (or, at least, could . . .
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Privacy and Power: A Reflection on the German-American Intelligence Crisis

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Tuesday, July 15, 2014 at 12:00 PM

The Germans are angry.  They have been simmering since Edward Snowden’s disclosures last summer revealed the startling extent of American intelligence-gathering and data-collection activities in Europe. Now they are boiling-over. The discovery, in the last few days, of paid American informants in the German Federal Intelligence Service and the Ministry of Defense, left President Joachim . . .
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On Glenn Greenwald’s Latest

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Wednesday, July 9, 2014 at 7:00 AM

After a huge amount of pre-publication hype, Glenn Greenwald’s new capstone NSA story is out, and I find myself with little to say about it. Greenwald has gotten his hands on a spreadsheet listing the email addresses of people supposedly subject to FISA surveillance, and he has identified five Muslim Americans whose addresses are on . . .
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Judge Bates and a FISA “Special Advocate”

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Tuesday, February 4, 2014 at 9:24 AM

In the midst of the hubbub over the PRG and PCLOB reports and the President’s speech, one of January’s more interesting developments in the FISA reform conversation has largely gone unaddressed (albeit not unnoticed): the “Comments of the Judiciary on Proposals Regarding the Foreign Intelligence Surveillance Act,” and Judge Bates’s cover letter transmitting those comments. . . .
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Lenity and the FISA Reform Endgame

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Friday, November 8, 2013 at 9:56 AM

I was on the same panel as Orin at Monday’s day-long hearing before the Privacy & Civil Liberties Oversight Board, and think there’s a lot to commend his proposal for a statutory rule of lenity as a tool to regulate national security surveillance–to scale back the government’s ability to push for expansive interpretations of the . . .
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A Very Brief Reply to Steve Vladeck

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Friday, October 18, 2013 at 11:20 AM

Let’s clear away the underbrush: The buried lede in Judge Walton’s letter of July 29—which is the one that matters—is the comparison of FISA scrutiny to that of district courts assessing Title III warrants, and not simply the raw percentage of modified applications. The media missed that. The broader questions Steve implicitly raises are, first, . . .
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Schmitt on Eliminating the FISC

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Friday, July 26, 2013 at 12:44 PM

Gary Schmitt has an interesting piece in the Weekly Standard that argues for eliminating FISC oversight of executive branch surveillance and instead ramping up congressional oversight.  He maintains that the FISC is hopelessly compromised because of secrecy, is constitutionally problematic, and is institutionally unsuited for the oversight task in any event.  His argument for Congress: But if . . .
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The Supreme Court’s Power To Hear In re EPIC

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Wednesday, July 10, 2013 at 9:05 AM

Wells blogged on Monday about EPIC’s new original filing in the Supreme Court, seeking mandamus, prohibition, or certiorari from the Justices to review Judge Vinson’s now-leaked FISA Court order with regard the section 215 request for Verizon’s “business records.” Needless to say, the merits of the section 215 question have received a lot of attention, . . .
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Google and Microsoft Want to Tell Us How Often they Get FISA Orders and FAA Directives: Why Not Let Them?

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Thursday, June 27, 2013 at 9:32 AM

A new development in the FISA/FAA world yesterday evening: Google and Microsoft have filed motions with the FISC (posted here on the FISC’s public site) asking for permission to disclose to the public how often they have received FISA orders and FAA directives over a set period. Why would they want to reveal such information, . . .
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Trust, but Codify: Metadata, Drones, and Legal Transparency

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Tuesday, June 18, 2013 at 10:15 AM

There is a subtle connection between the unfolding NSA metadata controversy and the controversy that has long plagued the administration’s position on drone strikes, involving the impact of transparency on the legitimacy of the underlying legal architecture. Transparency and the substantive legal foundations for controversial programs First, consider the extent to which the substantive legal . . .
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DNI Statement on the Verizon Story

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Friday, June 7, 2013 at 12:00 AM

ODNI has released a statement commenting on the Verizon story.  It underscores my point just now about the importance of minimization procedures, but also reminds me that it is perhaps even more important what rules the FISC (in conjunction with DOJ) has determined should limit use of the information derived from this type of collection.  . . .
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Senate Intel Members on Verizon Order: Nothing to See Here

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Thursday, June 6, 2013 at 12:57 PM

That’s the gist of this Politico report, which adds new details about congressional oversight and the FISC order directed at metadata for Verizon customers’ communications.  Some members have expressed concerns, apparently;  the Chair and Ranking member of the Senate Intelligence Committee, however, have not.  Quite the contrary, as the article explains: Sens. Dianne Feinstein (D-Calif.) and Saxby . . .
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U.S. Government Talking Points on the Leaked FISA Court Order

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Thursday, June 6, 2013 at 9:30 AM

Over at The Week, Marc Ambinder shares the following from a senior government official regarding the leaked FISA Court order for Verizon. These are, according to Ambinder, the official talking points crafted by the National Security Council and the intelligence community: * The article discusses what purports to be an order issued by the Foreign Intelligence Surveillance Court . . .
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Thoughts on a Blue-Sky Overhaul of Surveillance Laws: Approach

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Monday, May 20, 2013 at 9:00 AM

[Editor’s Note: below you’ll find the third in a series of posts by David Kris on surveillance reform.  In the first two installments, David introduced his subject, and then overviewed the challenges facing an attempt to overhaul the legal rules for surveillance.  Below he sketches a possible approach to a “blue-sky” reform effort.]  The first . . .
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Thoughts on a Blue-Sky Overhaul of Surveillance Laws: Challenges

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Sunday, May 19, 2013 at 11:00 AM

[Editor's Note: this is the second in a series of four posts by David Kris, on large-scale surveillance reform.  The first, an introduction, can be found here.  Below, David discusses the challenges facing any "blue-sky" overhaul.]  A blue-sky overhaul, while easy to imagine, would be extraordinarily difficult to execute, fraught with risk, and likely to . . .
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Thoughts on a Blue-Sky Overhaul of Surveillance Laws: Introduction

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Saturday, May 18, 2013 at 11:00 AM

[Editor’s Note: This is the first in a series of four posts, in which David S. Kris discusses the possibility of wide-ranging reform to U.S. surveillance law.]  A paper I wrote for Ben Wittes a few years ago discussed the “modernization” of our foreign intelligence surveillance laws after September 11, 2001, culminating in the FISA . . .
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Carrie Cordero on Questions to Ask After the Boston Attacks

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Sunday, April 28, 2013 at 3:00 PM

Carrie Cordero, Georgetown’s Director of National Security Studies and a former Justice Department official, writes in with this piece on the Boston attacks and possible improvements to our approach to counterterrorism: If the recent news reports are accurate (a leap of faith, but a necessary one for present purposes), then DNI Clapper’s recent statement that . . .
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National Security Investigations & Prosecutions, 2nd ed. (Vols. 1 & 2)

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Wednesday, April 10, 2013 at 1:21 PM

David S. Kris and J. Douglas Wilson’s second edition of National Security Investigations & Prosecutions is a necessary read, or at least necessary to have in your library, for just about anyone who practices, teaches, or writes about national security law.  Kris and Wilson offer what appears to be the country’s sole comprehensive treatise on . . .
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