FISA: Reform

Final Version, A Rule of Lenity for National Security Surveillance Law

By Orin Kerr
Monday, November 10, 2014, 2:06 PM

The final version of my article, A Rule of Lenity for National Security Surveillance Law, has been posted online at the Virginia Law Review website.   The article advocates a new approach to FISA reform: A rule of narrow judicial construction of national security surveillance powers, to be enacted by express Congressional enactment.   I first elaborated on the idea in a blog post here at Lawfare last year. The text would be simple, such as this: "The scope of government powers permitted by this chapter shall be construed narrowly." The basic idea is for the scope of authorities concerning national security surveillance to be settled by Congress instead of the Foreign Intelligence Surveillance Court.  It's not a cure-all, certainly, but I think it would help make the law more democratically accountable and more transparent.