A Rule of Lenity for National Security Surveillance Law
Orin S. Kerr
George Washington University - Law School
May 7, 2014
Virginia Law Review, Forthcoming
GWU Law School Public Law Research Paper No. 2014-29
GWU Legal Studies Research Paper No. 2014-29
This essay argues that Congress should adopt a rule of lenity for the interpretation of national security surveillance statutes. Under the 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 be 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 decisionmaker to balance privacy and security when technology changes, limiting the rule-making 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.
Number of Pages in PDF File: 37
Keywords: surveillance, FISA, Snowden, NSA
JEL Classification: K1, K42Accepted Paper Series
Date posted: May 9, 2014 ; Last revised: June 27, 2014
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