The Trump-Russia saga has more characters than War and Peace and plot twists harder to follow than Game of Thrones. So making sense of the latest news – that the FBI had taken out not one, but two surveillance orders under the Foreign Intelligence Surveillance Act (FISA) on former Trump campaign chairman Paul Manafort – can be difficult to put into context.… continue »
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 »
I. Foreign Policy
II. Trump and Russia
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 »
During summer of the 2016 presidential campaign, the FBI obtained a warrant from a secret court, known as the Foreign Intelligence Surveillance Court, to monitor a Donald Trump foreign policy adviser Carter Page due to Page’s communications with Russian agents, according to the Washington Post.… 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 »
A lot of ink has been spilled over statements by House Intelligence Committee Chairman Nunes that President Trump’s communications were incidentally collected pursuant to a surveillance order under the Foreign Intelligence Surveillance Act (FISA). This has a lot of Americans scratching their heads and asking what incidental collection is, so now seemed like a good time to explain.… continue »
The following is an abbreviated version of “Preventing an Air Panopticon: A Proposal for Reasonable Legal Restrictions on Aerial Surveillance,” published in the Volume 51 Spring Edition of the University of Richmond Law Review. … continue »
Surely without a hint of irony, just a day after WikiLeaks dumped a vault-load of documents detailing the Central Intelligence Agency’s use of hacking tools and software exploits, FBI Director James Comey told an audience at a Boston College conference on cybersecurity that “[t]here is no such thing as absolute privacy in America.” Comey’s elevator pitch in support of his claim was that “there is no place outside of judicial reach,” citing the fact that even time-tested testimonial privileges of the spousal, clergy–penitent, and attorney–client sort can be pierced by judges in “appropriate” circumstances.… continue »
