All posts by David S. Kris

Mr. Kris most recently served as assistant attorney general for national security, the Presidentially-appointed and Senate-confirmed head of the Justice Department’s National Security Division, responsible for supervising the enforcement of all federal criminal laws related to the national counterterrorism and counterespionage programs, and for providing legal oversight of intelligence activities conducted by executive branch agencies. Prior to that, he was deputy general counsel and chief ethics and compliance officer at Time Warner Inc., as well as adjunct professor of law at Georgetown University and a nonresident senior fellow at the Brookings Institution. Mr. Kris began his career with the United States Department of Justice in 1992 through its Honors Program, serving first as an attorney in the criminal division and then as associate deputy attorney general. Mr. Kris is the author or co-author of several works on national security law, including the treatise National Security Investigations and Prosecutions (Thomson-West 2007). He has testified numerous times before Congress, and been a speaker or panelist at events sponsored by various organizations including several law schools, the JFK School of Government at Harvard University, the American Bar Association, and the RAND Corporation. Mr. Kris received his bachelor’s degree in philosophy from Haverford College and is a graduate of Harvard Law School. He is a former law clerk to Judge Stephen Trott of the Ninth Circuit.

On the Bulk Collection of Tangible Things

This article examines the controversy surrounding bulk telephone metadata collection that has ensued since their disclosure in June 2013. The author analyzes the “use of tangible things” provision to acquire telephony metadata, including limitations on this practice, the statutory issues such a practice raises, and the ways in which the Foreign Intelligence Surveillance Court has decided on the issue since 2006. This article concludes that the Executive’s response, as delineated in a January 2014 speech, has yet to be fully implemented; however, the author argues that the disclosures have nonetheless raised new questions about the relative values of privacy and transparency in US intelligence.

Law Enforcement as a Counterterrorism Tool

In January 2011, Congress enacted legislation prohibiting the use of federal funds to transfer to the United States any individuals currently detained at Guantánamo Bay, Cuba. Among the purposes of this provision, observers commented, was to prevent the prosecution of these detainees in federal court in the United States. President Obama signed the legislation into law as part of the Defense Authorization Act, but he also issued a statement strongly objecting to the provision and pledging to seek its repeal:

[This provision] represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantánamo detainees, based on the facts and the circumstances of each case and our national security interests. The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must beamong the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation’s counterterrorism efforts and has the potential to harm our national security.

The congressional action and the President’s response are part of a broader public debate about the role of law enforcement as a counterterrorism tool. Some question the effectiveness of the U.S. criminal justice system and argue that it should never be used against terrorists, or at least some kinds of terrorists. In contrast, some others argue that law enforcement is the only legitimate way to detain terrorists, and that they should either be prosecuted in the civilian courts or released. This article argues that we should continue to use all of the military, law enforcement, intelligence, diplomatic, and economic tools at our disposal, selecting in each case the particular tool that is most effective under the circumstances, consistent with our laws and values. The discussion proceeds in five main parts.