David Cole

Less Safe, Less Free: Why America Is Losing the War on Terror
New Press (2007), Jules Lobel, co-author

The Torture Veto
The Nation, March 31, 2008 issue

Why We’re Losing the War on Terror
The Nation, September 24, 2007 issue

The Man Behind the Torture (book review)
The New York Review of Books, Volume 54, Number 19

The Grand Inquisitors (book review)
The New York Review of Books, Volume 54, Number 12

David S. Kris

National Security Investigations and Prosecutions
This treatise presents the law governing, and related to, national security investigations (NSIs). An NSI is an investigation conducted by the United States government to acquire information about foreign threats to the national security, e.g., international terrorism. National security law is often inaccessible, and can be particularly hard to follow when divorced from the context of historical tradition, governmental structures, and operational reality in which it functions. This treatise explores the full background of NSIs, both from a pre-911 and a post-911 perspective, providing a powerful tool for any attorney handling a case involving a national security investigation or prosecution.

Modernizing the Foreign Intelligence Surveillance Act

What’s the Big Secret? Are They Listening to Me?

Testimony of David S. Kris before the Committee on the Judiciary, U.S. Senate (March 28, 2006)

Comments on the Foreign intelligence Surveillance Act of 2007

Paul Schwartz (moderator)

Notification of Data Security Breaches
105 Michigan Law Review 913 (2007), Edward Janger, co-author

Information Privacy Law
Aspen Publishers, second edition (2006), Daniel J. Solove & Marc Rotenberg , co-authors

Property, Privacy, and Personal Data

117 Harvard Law Review 2055 (2004)

The New Privacy (book review)
101 Michigan Law Review 2163 (2003), William Treanor, co-author

Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property
112 Yale Law Journal 2331 (2003), William Treanor, co-author

Voting Technology and Democracy
75 N.Y.U. Law Review 625 (2002)

Free Speech versus Information Privacy: Eugene Volokh’s First Amendment Jurisprudence (comment)
52 Stanford Law Review 1559 (2000)

Professor John Yoo

The Terrorist Surveillance Program and the Constitution
In response to the September 11 attacks, President Bush created the Terrorist Surveillance Program, which authorized the National Security Agency to intercept phone calls and emails traveling into and out of the United States. One of the parties to the communication had to be someone suspected of being a member of al Qaeda. This surveillance took place outside the framework of the Foreign Intelligence Surveillance Act, which since 1978 has regulated the interception of communications entering or leaving the United States. This Essay argues that the TSP represents a valid exercise of the President’s Commander-in-Chief authority to gather intelligence during wartime. Part I argues that critics of the program misunderstand the separation of powers between the President and Congress in wartime. Part II traces the confusion to a failure to properly understand the differences between war and crime, and a difficulty in understanding the new challenges presented by a networked, dynamic enemy such as al Qaeda. Part III explains that because the United States is at war with al Qaeda, the President possesses the constitutional authority as Commander-in-Chief to engage in warrantless surveillance of enemy activity. It draws on historical examples to show a long practice of presidential authority in this area.