Brookings Senior Fellow, Legal Analyst, Author, Editor of the Lawfare Blog

Reforming the NSA: How to Spy After Snowden

In Major Papers, Short Writings, Surveillance, Surveillance on April 24, 2014 at 9:11 pm

Coauthored with Daniel Byman, Foreign Affairs, May-June 2014

The long-running debate over the tradeoffs the United States should make between national security and civil liberties flared up spectacularly last summer, when Edward Snowden, a National Security Agency contractor, handed journalists a huge trove of heavily classified documents that exposed, in excruciating detail, electronic surveillance programs and other operations carried out by the NSA. Americans suddenly learned that in recent years, the NSA had been acquiring the phone and Internet communications of hundreds of thousands of U.S. citizens, as well as collecting massive volumes of bulk telephone records known as “metadata” — phone numbers and the time and length of calls. Along with the rest of the world, Americans found out that the NSA had broken common forms of online encryption, tapped the phones of various foreign heads of state, and monitored global communications far more aggressively than was previously understood.

Howls of outrage erupted. Brazilian President Dilma Rousseff, who learned from the Snowden leaks that the NSA had been monitoring her personal conversations, described the NSA’s activities as a “violation of human rights and civil liberties,” decrying the “disrespect to national sovereignty.” In the United States, both ends of the political spectrum denounced the NSA’s activities. Rand Paul, a Republican senator from Kentucky, called them “an all-out assault on the Constitution,” and the former Democratic vice president Al Gore said they were “obscenely outrageous.”

Is Al Qaeda Winning: Grading the Administration’s Counterterrorism Policies

In Congressional Testimony, Uncategorized on April 8, 2014 at 7:52 am

Testimony before the House Foreign Affairs Subcommittee on Terrorism, Non-Proliferation, and Trade

Thank you, Chairman Poe, Ranking Member Sherman, and members of the subcommittee for inviting me to present my views on the future of the Authorization for the Use of Military Force (AUMF) and intelligence collection under Section 702 of the FISA Amendments Acts (FAA). I am a Senior Fellow in Governance Studies at the Brookings Institution. I co-founded and am Editor in Chief of Lawfare, a website devoted to sober and serious discussion of “Hard National Security Choices.” I am the author or editor of several books on subjects related to law and national security: Detention and Denial: The Case for Candor After Guantánamo (2011), Law and the Long War: The Future of Justice in the Age of Terror (2008), and Legislating the War on Terror: An Agenda for Reform (2009). I have written extensively both on the AUMF and on NSA collection under various provisions of the Foreign Intelligence Surveillance Act (FISA). The views I am expressing here are my own.

The topics of the vitality and adequacy of the AUMF for the conflict the United States is currently fighting and the NSA surveillance programs that have, of late, dominated news headlines may seem largely unconnected. The AUMF and the FAA, after all, are profoundly different legal authorities, passed at different times, and with different fundamental purposes—one to authorize the conflict with Al Qaeda and the Taliban in response to the September 11 attacks, the other to gather foreign intelligence both inside and outside of the context of that armed conflict.

Speaking the Law: The Obama Administration’s Speeches on National Security Law

In Books, Uncategorized on March 28, 2013 at 7:02 am

Coauthored with Kenneth Anderson


Over the course of President Obama’s first term in office, the president and senior officials of his administration have given a series of major speeches on the legal framework for confronting terrorists overseas. The speeches collectively represent the fullest statement the administration has given of the law of drones, targeted killing, and the larger approach to the war against Al Qaeda and its allies. The Obama administration has faced criticism both for the content of the speeches and for not saying more in them–and releasing the legal memos that lie beneath them. In Speaking the Law, Kenneth Anderson and Benjamin Wittes dissect the Obama administration’s major speeches on national security law–analyzing what the administration has actually said, fleshing out the virtues and vices of the legal framework it has mapped out, and suggesting areas for legislative refinement and further administration development.

This book is being released serially, as each chapter is completed, in electronic form.