Since the earliest days of the Republic, political and military leaders have recognized that U.S. national security depends upon the collection of intelligence. The legislature and the courts have thus given the executive branch a wide berth to determine how best to obtain and use foreign intelligence. At times, the executive has so aggressively pursued its course that it has run afoul of the Constitution. At such moments, the courts and the legislature have taken steps to bring it back into line. In the 1970s, the Foreign Intelligence Surveillance Act served as one such marker. Congress sought to provide the President with enough authority to deter external attack and to ensure domestic security, while protecting individual rights. The courts subsequently deemed the legislation a Constitutional limit on executive power.
For nearly three decades, the equilibrium held. But the attacks of 9/11 radically shifted the landscape. The executive branch immediately took advantage of new and emerging technologies, bypassing the statutory realm altogether. In the process, it ran roughshod over important limits that the founding generation, for good reason, cemented into the Fourth Amendment. Later efforts to shoehorn the programs into the existing statutory framework lead to a contorted reading of the law—one hidden from public view by the classified nature of national security, until a series of leaks forced the information into the public domain.
General warrants, rejected by the Framing generation, have returned with a vengeance. Legal doctrines that fail to recognize the enormous privacy interests at stake in online communications and relationships, the recording of what citizens say and where they go—and who they are with when they do so—are utterly unsuited to a digital world. The post-9/11 convergence between national security and law enforcement lends further urgency, as the weaker standards that mark foreign intelligence are now being used for ordinary criminal prosecution. At risk is the right to privacy of all citizens, as well as the balance of power, in the United States. The stakes could not be higher, as we enter the digital age.
Professor of Law
Tuesday, January 19, 2016
12:00 PM – 1:00 PM
UC Davis School of Law, King Hall Rm 1301
Laura K. Donohue is Professor of Law and Director of Georgetown’s Center on National Security and the Law and the Center on Privacy and Technology. Professor Donohue writes on U.S. Constitutional Law, American and British legal history, and national security and counterterrorist law in the United States and United Kingdom. She is currently working on The Future of Foreign Intelligence (Oxford University Press, 2015), focusing on the Fourth Amendment and surveillance in a digital world. Prior to this, The Cost of Counterterrorism: Power, Politics, and Liberty (Cambridge University Press, 2008) looked at the impact of American and British counterterrorist law on life, liberty, property, privacy, and free speech, while Counterterrorist Law and Emergency Law in the United Kingdom 1922-2000 (Irish Academic Press, 2007) concentrated on measures introduced to address violence in Northern Ireland. Her articles have examined, inter alia, the doctrine of state secrets; the advent of remote biometric identification; Executive Order 12,333 and the Foreign Intelligence Surveillance Act; extended detention and interrogation; terrorist trials; antiterrorist finance and material support; synthetic biology, pandemic disease, and biological weapons; scientific speech; and the history of quarantine law.
Donohue obtained her A.B. in Philosophy from Dartmouth College, her M.A. in Peace Studies from the University of Ulster, Northern Ireland, her J.D. from Stanford Law School, and her Ph.D. in History from the University of Cambridge, England.