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 »

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 »

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 »

An important foreign military partner in our armed conflict against al-Qaida in Yemen—the United Arab Emirates—has faced a series of allegations that it is engaged in systematic torture of detainees in different parts of that country. The US government and individual US officials may be implicated in these abuses under domestic and international law, as Steve Vladeck explained in an analysis for Just Security.…   continue »

During last week’s hearing of the Senate intelligence committee, Attorney General Jeff Sessions generated withering criticism by repeatedly refusing to answer Senators’ questions about his communications with President Donald J. Trump, including discussion of the President’s decision to fire James Comey as Director of the Federal Bureau of Investigation.…   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 »

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 »

President Trump’s decision to summarily dismiss now-former FBI Director James Comey has sparked grave concerns in many quarters.  The move has been described as a profoundly dangerous example of the President’s authoritarian instincts.  It has led to warnings of a potential constitutional crisis, speculation whether the president is guilty of obstruction of justice, and skepticism that the President’s proffered reasons for the termination actually underlie his decision.…   continue »

This week has shed light on the Trump administration’s aggressive approach to executive privilege, but it has also cast doubt over President Donald Trump’s ability to assert it successfully over the longer term. We watched this play out when the Justice Department warned former Acting Attorney General Sally Yates that she needed White House clearance to testify before the House intelligence committee due to issues of executive privilege.…   continue »

Tuesday, March 28

10:00am – House Committee on Armed Services – Military Assessment of Russian Activities and Security Challenges in Europe (here)

10:00am – House Committee on Homeland Security – The Current State of DHS’ Efforts to Secure Federal Networks (here)

10:00am – House Committee on Foreign Affairs – The Budget, Diplomacy, and Development (here)

10:30am – Senate Committee on Foreign Relations – U.S.…   continue »