With less than five months to go until Section 702 of the Foreign Intelligence Surveillance Act (FISA) expires, we still do not have a clear path forward to a reauthorization that would also address the law’s substantial problems.  A major reason for this is an impasse on what to do about the law’s most significant flaw: that it permits the government to seek out the content of Americans’ communications that have been swept up through Section 702 without any suspicion of wrongdoing, let alone a warrant, a problem known as “the backdoor search loophole.” Unfortunately, opponents of reforming the loophole have either failed to understand how the proposed fix to the loophole would actually work, or are describing it inaccurately in an effort to discredit reform.…   continue »

A U.S. Army howitzer firing at Islamic State positions in Iraq in 2016.

Last Friday, Rita Siemion published an insightful analysis of the Trump Administration’s first meaningful public statement on its authority for the ISIS war, which came in the form of a letter from the State Department to Senate Foreign Relations Committee (SFRC) Chairman Bob Corker.…   continue »

As mentioned last week by Jane Stromseth in her terrific post “Why the U.S. needs the Office of Global Criminal Justice Led by a Senate-Confirmed Ambassador-at-Large,” the intrepid Representative Ted Lieu (D-CA) has been circulating a petition among members of Congress in defense of the State Department’s Office of Global Criminal Justice.  …   continue »

As Trump reissues his “lock her up” talk against Hillary Clinton and assaults the Justice Department, FBI, and media, the Brennan Center recently had a prescient meeting about what to do if President Trump uses some pretext to launch a state of emergency.…   continue »

On Thursday July 27, the National Security Subcommittee of the U.S. House Committee on Oversight and Government Reform will hold a hearing on “Combatting Homegrown Terrorism.” Preventing terrorism in the United States is of course an important goal, and it is entirely appropriate for Congress to examine ways to improve our counterterrorism efforts and keep the public better informed about the threats we face.…   continue »

Over the weekend, the New York Times revealed that former Independent Counsel Kenneth Starr concluded that it was “proper, constitutional, and legal for a federal grand jury to indict a sitting president.” Although Starr’s conclusion was previously unknown, there can be little doubt that the President’s team has considered the possibility of an indictment for some time.…   continue »

Former Secretary of Homeland Security Jeh Johnson testified Wednesday before the House Intelligence Committee as part of the House investigation into Russian interference in the 2016 election. Much of the hearing focused on Johnson’s decision, announced on January 6, to designate election infrastructure as “critical infrastructure.” Both Rep.…   continue »

Events over the last several weeks show that not only is the AUMF issue not going away, but that Congress continues to inch closer to agreement. This Tuesday, the Senate Foreign Relations Committee will hold a hearing on “Reviewing Congressional Authorizations for the Use of Military Force.” As readers well know, the executive branch continues to rely on the war authorization Congress passed a week after the 9/11 attacks.…   continue »

In a recent analysis for Just Security, I explored some concerns about how warrantless surveillance under Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) may be undermining the U.S. criminal justice system. While many of those concerns would apply to the government’s potential reliance on warrantless Section 702 data as part of any criminal probe, I expressed a worry that such data might conceivably be making its way into investigations of relatively low-level suspected offenses (for example, suspected drug-related violations).…   continue »

The Trump White House took another step last week to weaken the checks and balances at the center of our constitutional system.  According to Politico, President Donald Trump’s “White House is telling federal agencies to blow off Democratic lawmakers’ oversight requests.”  As Politico reported, “a White House lawyer told agencies not to cooperate with such requests from Democrats, according to Republican sources inside and outside the administration.”

Politico’s reporting was reinforced by the release of a memorandum from the Trump Justice Department’s Office of Legal Counsel to the White House Counsel entitled “Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch.”  That memorandum states that “Individual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee.”

This is a brazen statement and one for which the OLC memo lacks support.  …   continue »