A Rule of Lenity for National Security Surveillance Law

Essay — Volume 100, Issue 7

100 Va. L. Rev. 1513
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This Essay argues that Congress should adopt a rule of narrow construction of the national security surveillance statutes. Under this interpretive rule, which the Essay calls a “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 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 decision maker to balance privacy and security when technology changes, limiting the rulemaking 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.

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  Volume 100 / Issue 7  

The New Local

By Nadav Shoked
100 Va. L. Rev. 1323

Litigating the Financial Crisis

By David Zaring
100 Va. L. Rev. 1405

Another Look at Professor Rodell’s Goodbye to Law Reviews

By Harry T. Edwards
100 Va. L. Rev. 1483

A Rule of Lenity for National Security Surveillance Law

By Orin S. Kerr
100 Va. L. Rev. 1513