The NSA Controversies: a Guide for the Perplexed

Over the past week, Lawfare has published three separate items that may be of value if you’re one of those people who is trying to figure out what to make of the whole NSA-Snowden-FISA mess. The first is a detailed paper by David Kris, entitled “On the Bulk Collection of Tangible Things.” Kris is an unusual figure in the FISA controversies. He is both the leading academic authority on the subject (though he is not a law professor, he is the author of a treatise on National Security Investigations and Prosecutions), and he has very rare granular experience as well. He was the head of the Justice Department’s National Security Division earlier in this Obama administration. Fourth Amendment scholar Orin Kerr, writing over at the Volokh Conspiracy, describes the Kris paper as “the best defense (by far) of the lawfulness of the NSA’s telephony metadata program.” And over at Just Security, Marty Lederman—who served with Kris at the Justice Department—offers a detailed discussion of the paper, which he critiques, and describes “the final nine pages . . . , in which David discusses possible changes in the way the government might treat the confidentiality of intelligence programs, [as] an ideal introduction to what ought to be a very important debate in the coming months and years about secrecy, transparency, and democratic accountability.”