Krauss on Reconciliation of Individual Rights with War on Terror

The nature of two federal district court rulings rendered within days of each other highlights the division in American politics and law on how to reconcile individual rights with the war on terror, says Professor Michael Krauss in a December 2006 issue of Virginia Lawyer.

Krauss examines the ruling in United States v. Rosen,maintaining that it is a "careful literalist opinion that gives too short fundamental individual rights." In that case decided in the Eastern District of Virginia, Judge T.S. Ellis III held that the diminished First Amendment rights of government employees involved in improper disclosure of national security information may be applied to people outside government as well.

The other ruling, ACLU v. NSA, is "a stunning piece of judicial activism," says Krauss. In it Michigan Senior Judge Anna Diggs Taylor ruled that the warrantless surveillance by NSA of international phone calls between foreign Al Qaeda members abroad and and U.S. persons violated the Fourth and First Amendments.

Human Rights and Counterterrorism: A Tale of Two Districts, Virginia Lawyer, December 2006. By Michael I. Krauss.

"What if the New York Times had been prosecuted instead of AIPAC? Would the former have received constitutional protection that has now been denied the latter, even though petitioning the government is explicitly protected by the First Amendment? It is highly significant that two individual lobbyists who did nothing more than receive and use classified information from a disgruntled defense employee are prosecuted for using it, while newspapers that routinely do exactly the same thing continue unmolested. The former, unlike the latter, can ill afford the legal fees that are required now that a full trial has been ordered. Will they be tempted to plea bargain to avoid a lengthy prison term? If they do, a travesty of individual rights may have occurred here."

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