Thorough Debunking of "Statutory" Argument for NSA Surveillance Program

[kpete]

Thursday, March 09, 2006
A Thorough Debunking of the "Statutory" Argument for the NSA Surveillance Program -- But Alas, Congress Doesn't Care


Marty Lederman


Today's Washington Post reports that David Kris, DOJ's Associate Deputy Attorney General in charge of national security issues from 2000 to 2003 -- now a counsel at Time-Warner -- is "highly critical" of the legal arguments that DOJ has offered in support of the legality of the NSA domestic spying program. That's putting it mildly.

I worked with David at the Department of Justice. It's very safe to say he was one of the very best appellate lawyers in the Department -- and became one of the most trusted, most well-respected authorities in the Department on criminal law and electronic surveillance issues once he moved on to the DAG's Office. He's extremely thorough, careful, and impartial. And those qualities are on display in his recent analysis of the NSA program, contained in this series of e-mails to the Attorney General's Office in December and January, and, much more importantly, in this remarkable 23-page memo dated January 25, 2006. (All were written in his personal capacity, and do not reflect the views of DOJ or Time-Warner.)

David's memo is by a large measure the most thorough and careful -- and, for those reasons, the most effective -- critique anyone has yet offered of the DOJ argument that Congress statutorily authorized the NSA program. It largely confirms the statutory argument contained in two letters that I and 13 other academics and former government officials recently sent to Congress (here and here), but David's analysis is much more comprehensive than anything we could have done in that format -- it delves deep into the interstices and legislative history of FISA (a subject that David knows inside and out), and takes apart with precision all of the technical statutory arguments offered in the DOJ "White Paper" defense of the program.

Two things in particular stand out:

lots more at:
http://balkin.blogspot.com/2006/03/thorough-debunking-of-stat_114195035963469598.html