Law Commons^™

Shu'ubiyya Or Security? Preserving Civil Liberties By Limiting Fisa Evidence To National Security Prosecutions, William Pollak

University of Michigan Journal of Law Reform

Part I of this Note addresses the restrictions on intelligence gathering under FISA prior to 9/11 and the motivations underlying the Patriot Act's revisions to FISA. Part II discusses the problems with the "primary purpose" test, which was in effect prior to the Patriot Act's revisions to FISA. Part III reviews the various policy and constitutional arguments made against the Patriot Act's "significant purpose" test. Part IV proposes that Congress enact a new "inextricably intertwined" test to govern the admission of FISA material in criminal prosecutions. Specifically, this Part looks at sixty criminal cases in which FISA material was admitted …

Law V. National Security: When Lawyers Make Terrorism Policy, William G. Hyland Jr.

Richmond Journal of Global Law & Business

Are lawyers strangling our government’s ability to fight the first war of the twenty-first century? Does judicial adventurism and the fear of litigation undermine the War Against Terrorism? In essence, is our national security apparatus overlawyered? This article analyzes how some lawyers have produced a synthetic “litigation culture” over the war on terror. It argues that litigation concerning electronic surveillance, interrogation and all manners of prisoner treatment has chilled counterintelligence since 9/11.

The Protect America Act Of 2007: A Framework For Improving Intelligence Collection In The War On Terror, Jeffrey F. Addicott, Michael T. Mccaul

Faculty Articles

The most important weapon in the War on Terror is intelligence. The Protect America Act of 2007, a modification of the Foreign Intelligence Surveillance Act (FISA), was favored by Congress for providing a positive framework for ensuring the proper rule of law kept pace with changes in technology. FISA closed the intelligence gaps that had arisen because of the application of the Act to foreign persons in foreign countries.

FISA codifies in federal law the procedures associated with how electronic surveillance and searches of acquisition of foreign intelligence is conducted. In order to conduct electronic surveillance, a court order must …

Electronic Surveillance At The Virtual Border, Susan Freiwald

Susan Freiwald

A virtual border divides people into two groups: those subject to the Fourth Amendment’s protections when the U.S. government conducts surveillance of their communications and those who are not. The distinction derives from a separation in powers: inside the virtual border, U.S. citizens and others enjoy the extensive oversight of the judiciary of executive branch surveillance. Judges review such surveillance before, during, and after it transpires. Foreign persons subject to surveillance in foreign countries fall within the executive branch’s’ foreign affairs function. However, the virtual border does not exactly match the physical border of the United States. Some people inside …