By Peter M. Shane.
To read full report: The NSA and the legal regime for foreign intelligence surveillance
“Mr. President, no one is saying you broke any laws, we’re just saying it’s a little bit weird you
didn’t have to.” – John Oliver.
As the papers in this symposium demonstrate, serious commentators reviewing the National Security Agency (NSA) surveillance programs that have been revealed through recent leaks are far from unanimous that the programs are lawful.
The point of John Oliver’s joke, however, still rings true: Somehow, our laws have evolved to a stage where lawyers could plausibly defend the government’s entitlement to capture and store an immense volume of our telephone and online communications, as well as metadata about both. For many Americans, this is a breathtaking reality.
The point of this Article is to explain our legal evolution as a way of providing context for the I/S symposium on “NSA Surveillance: Security, Privacy, and Civil Liberty.” It will introduce the papers that follow, and offer some concluding thoughts on the issues of executive power that lurk behind the controversy.
