Academic articles

Harvard National Security Journal has published an article by Scott J. Glick (Deputy Chief, Counterterrorism Section, National Security Division, U.S. Department of Justice) entitled “FISA’s Significant Purpose Requirement and the Government’s Ability to Protect National Security” . Here’s the abstract:

In 2006, Congress enacted two potentially significant restrictions on the government’s ability to collect foreign intelligence information pursuant to FISA.  Against the backdrop of a Foreign Intelligence Surveillance Court of Review (Court of Review) decision that arguably reached an erroneous conclusion about the meaning and scope of FISA’s significant purpose requirement, Congress let stand two restrictions that the Court of Review had placed on the government’s use of FISA.  First, the Court of Review held that if the government’s primary purpose was to prosecute, then the government could use FISA only if it intended to prosecute an alleged terrorist or spy for what the court called a “foreign intelligence crime.”  The Court of Review also held that the government could not use FISA, even when it intended to prosecute for a foreign intelligence crime, if that crime occurred in the “past.”  This Article examines the Court of Review’s decision and argues that the court reached an erroneous conclusion in regard to the scope of the government’s power.  The Article also takes a comprehensive and fresh look at the legislative history of FISA’s purpose requirement, both before and after the Court of Review’s decision.  The Article demonstrates that Congress was keenly aware of the restrictions placed on the government by the Court of Review, and rather than explicitly expressing its will in a Final Conference Report with respect to that decision, it simply voted to repeal the amendment’s sunset provision.  The Article concludes by proposing legislation that would remove both of the restrictions placed on the government by the Court of Review.

Antonios Tzanakopoulos (Univ. of Glasgow – Law) has posted “Domestic Court Reactions to UN Security Council Sanctions” (in Challenging Acts of International Organizations Before National Courts, August Reinisch ed., forthcoming). Here’s the abstract:

This paper attempts to trace, analyze, and justify, the reactions of domestic courts when these are faced with a challenge to domestic measures implementing Security Council sanctions regimes, in particular the regime under SCRs 1267 (1999) seq. It discusses the method in which domestic courts engage with the measures before them, as well as the standard of review they apply, and the usual outcomes of the challenge, ie abstention, low-intensity review, interpretation or annulment of the domestic measure. Interpretation and annulment of the domestic measure in particular may force the State in breach of its international obligations under the relevant SCRs and Article 25 of the UN Charter. The final section attempts to legal qualify and justify this potential breach.

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