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The NSA Controversies: A Guide for the Perplexed

Brendan Smialowski/Getty

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.”

The second item is a simple resource page we put together as part of a larger project of building a primary source document library for the field of national security law. We have tried to collect all of the material the government has disclosed and organize it without commentary but with a certain amount of explanatory text—along with links to the key news stories that have resulted from the Snowden leaks. The page, like the rest of the document library, is intended as a service to the community of people who do research in the field of national security law. But the interested lay person may find it useful as well.

Finally, the other day, I participated in a debate on these issues over at the George Washington University Law School. Kerr—a noted Fourth Amendment Scholar—moderated it and participated as well. He and I and Steve Vladeck, who both edits Just Security and writes regularly for Lawfare, had a wide-ranging discussion that offers a useful overview both of the debate over bulk metadata collection and of some of the larger issues about reform of the FISA. Among other things, Lawfare runs a regular podcast, so I recorded the session and this morning posted the audio.