Tuesday, December 20, 2005

Orin Kerr on the NSA and FISA

Professor Orin Kerr has an exceptional post up at the Volokh Conspiracy about the NSA and FISA. His conclusion: the activity is probably illegal under FISA, but probably permissible under the Fourth Amendment. He is careful to add numerous caveats to this very basic opinion.

For the most part, I agree with his Fourth Amendment analysis; indeed, he articulates thoughts similar to my own, though he does so with far greater clarity.

As for the FISA analysis, his reasoning strikes me as generally sound, save a couple of quibbles: I wish he had fleshed out the implications of the statutory definition of "United States persons" under the statute and that he had looked with greater specificity as to how FISA addresses terrorism as a matter of statutory construction. Despite this, he makes a strong case for illegality.

In any event, there is no excuse for any interested person to pass this post by. It's long, so be sure you have a decent block of time to work through it, but well worth a full read.


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