Narrowly Constructing National Surveillance Law
Orin Kerr has a new article that argues for narrowly constructing national security law:
This Essay argues that Congress should adopt a rule of narrow construction of the national security surveillance statutes. Under this interpretive rule, which the Essay calls a “rule of lenity,” ambiguity in the powers granted to the executive branch in the sections of the United States Code on national security surveillance should trigger a narrow judicial interpretation in favor of the individual and against the State. A rule of lenity would push Congress to be the primary decision maker to balance privacy and security when technology changes, limiting the rulemaking power of the secret Foreign Intelligence Surveillance Court. A rule of lenity would help restore the power over national security surveillance law to where it belongs: The People.
This is certainly not a panacea. As Jack Goldsmith rightly points out, more Congressional oversight over NSA surveillance during the last decade would have gained us more NSA surveillance. But it’s certainly better than having secret courts make the rules after only hearing one side of the argument.
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