Main Volumes

The Evolution and Jurisprudence of the Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review by Laura K. Donohue The past eight years have witnessed an explosion in the number of publicly-available opinions and orders issued by the Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review. From only six opinions in the public domain 1978–2012, by early 2021, eighty-eight opinions had been released. The sharp departure is even more pronounced in relation to orders: from only one order declassified during 1978–2012, since 2013, 288 have been formally released. These documents highlight how the courts’ roles

Pro-Constitutional Engagement: Judicial Review, Legislative Avoidance and Institutional Interdependence in National Security by Nino Guruli This paper examines the role of legislatures and how judicial review can prompt legislative activity. In the national security arena, more emphasis tends to be placed on the dangers of judicial activity—understood as judicial activism—without adequate acknowledgement of the fact that judicial avoidance can be equally “activist” and can have an impact on the political process. Post 9/11, facing a similar challenge, and relying on similar constitutional, institutional, and normative principles, the courts in the United States and United Kingdom made different choices, in large

Examining the Anomalies, Explaining the Value: Should the USA FREEDOM Act’s Metadata Program be Extended? by Susan Landau & Asaf Lubin Edward Snowden’s disclosure of National Security Agency (“NSA”) bulk collection of communications metadata was a highly disturbing shock to the American public. The intelligence community was surprised by the response, as it had largely not anticipated a strong negative public reaction to this surveillance program. Controversy over the bulk metadata collection led to the 2015 passage of the USA FREEDOM Act. The law mandated that the intelligence community would collect the Call Detail Records (“CDR”) from telephone service providers

First Amendment Sentence Mitigation: Beyond a Public Accountability Defense for Whistleblowers by Mailyn Fidler Public accountability defenses for whistleblowers who reveal national security information to the media or the public have largely failed. Courts have rejected such arguments and Congress has not provided a statutory defense. This Article argues that the appropriate place to consider public accountability factors in whistleblower cases is at sentencing. Courts can take, and have taken, substantive First Amendment rights into consideration at sentencing as mitigating factors. Courts do so rarely and cautiously, usually in moments of perceived breakdown in the political processes that facilitate the