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Editors

Editor-in-Chief: Jacob Baggett, Lincoln Memorial University
Executive Managing Editor: Jennifer McNeil, Lincoln Memorial University
Executive Articles Editor: Stirling Walsh, Lincoln Memorial University
Executive Symposium Editor: TBD, Lincoln Memorial University
Executive Notes Editor: David Graham, Lincoln Memorial University
 

“The Snowden Effect: The Impact of Spilling National Secrets.”

The Lincoln Memorial University Law Review will host its Symposium on Friday, January 30, 2015 at the LMU-Duncan School of Law in downtown Knoxville, Tennessee.

The goal for the Symposium is to facilitate discussion among scholars and practitioners regarding the implications of the national security disclosures by former government contractor Edward Snowden. Topics will include, but not necessarily be limited to: the protection of government sources and methods; Fourth Amendment and privacy issues; the effect of the Snowden disclosures and other such security leaks on U.S. foreign policy, particularly or relationships with our allies; surveillance state concerns; and the classification of government material.

Speakers include:

James Bamford, author of, among other works, The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America, will discuss the transformation of the National Security Agency (NSA) since 9/11 as the agency has increasingly turned its high-tech gaze within America's border. He will describe how the NSA missed a chance to thwart two of the 9/11 hijackers and detail how this mistake has led to a heightening of surveillance to ensure that it never happens again.

Chris Inglis, former Deputy Director of the NSA, will discuss “National Security in the Age of Cyberspace - Can Convergence, Security, Privacy, and Transparency Co-exist?” In this lecture, Mr. Inglis will describe the principles, authorities, priorities, and controls that govern the conduct of foreign intelligence surveillance in the twenty-first century. The lecture will cover both the framework and real-world examples of U.S. efforts to achieve the reconciliation of the various aims embodied in the U.S. Constitution, principles that both establish and constrain the work of the U.S. government.

Brett Max Kaufman, former American Civil Liberties Union (ACLU) national security fellow and now Teaching Fellow at New York University School of Law, will discuss “The NSA’s Time Machine,” the government’s “collect it all” philosophy concerning intelligence collection and what such a philosophy means for the United States and the world. Mr. Kaufman’s presentation will focus on the big picture, rather than a legal discussion—in particular, he will assert that the legal arguments the government is making, and the physical infrastructure it is creating, lay the foundation for this “time machine” concept.

Richard Broughton, Associate Professor of Law at University of Detroit-Mercy School of Law, will discuss the constitutional provision that requires “adhering” to the enemy, giving them “aid and comfort” (which is the provision most likely at issue in a treason case involving actions like Snowden’s), the communication of classified documents, and the relevance of the actor’s mental state to the interpretation and application of the Treason Clause. Drawing on the Supreme Court’s World War II treason cases (Cramer, Haupt, and Kawakita, in particular), his lecture endeavors to ground treason mens rea in appropriate constitutional and criminal law doctrine and to demonstrate how electronic communications that reach the enemy do not constitute treason – even if those communications actually aid the enemy – in the absence of a specific intent to betray America.

Mark Jaycox, Legislative Analyst for the Electronic Frontier Foundation (EFF), will discuss the different aspects of surveillance law reform. Mr. Jaycox’s presentation will include the current state of key surveillance laws like the Electronic Communications Privacy Act and the Foreign Intelligence Surveillance Act (FISA). It will give an overview of the key items needed for thorough surveillance reform, the current proposals in Congress, and the potential outcomes. The audience will leave the presentation with a basic knowledge of key surveillance laws, the various reform proposals in Congress, why reform is needed, and the status of such reform.

Melanie Reid, Associate Professor of Law at LMU-Duncan School of Law and former federal prosecutor, will discuss recent revelations from Reuters that law enforcement agencies such as the Drug Enforcement Administration (DEA) are using NSA intercepts, wiretaps by foreign governments, court-approved domestic wiretaps, and phone log databases to initiate criminal investigations. DEA agents utilize “parallel construction” to hide the original source which initiated the criminal investigation. The initial intelligence is effectively “scrubbed” before sent out to field agents and is not used as evidence at the criminal trial. Professor Reid’s presentation explores the constitutionality of “parallel construction,” the relationship between the intelligence community and law enforcement, and whether the non-disclosure of how a criminal investigation was initiated constitutes a violation of a defendant’s right to discovery pre-trial and right to a fair trial.

Mrs. Elisabeth Cook, a member of President Obama’s Privacy and Civil Liberties Oversight Board (Board), will open the presentation with an overview of the Board and provide a brief examination of the Board’s history and current composition. Through an analysis of the enabling statute, Mrs. Cook will outline the Board’s unique advisory and oversight role in the federal government’s counterterrorism mission, and examine how provisions of the 2007 Implementing Recommendations of the 9/11 Commission Act facilitated the transition to the Board’s current make-up and statutory role. Mrs. Cook will then discuss the Board’s two most recent public reports, the Report on the Telephone Records Program Conducted Under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court and the Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act. Last, Mrs. Cook will speak about the Board’s strategic vision and prospective role as an independent executive oversight/advisory agency by discussing the Board’s upcoming public agenda and future areas of inquiry.

Beth O'Brien, Special Agent with the FBI and Counterintelligence Strategic Partnership Coordinator, will discuss President Obama’s Snowden-driven Executive Order 13587, which created the National Insider Threat Task Force (NITTF). The NITTF was charged with developing a National Insider Threat Policy and a standard set of minimum standards for all United States government executive branch agencies with access to classified material, which it did. President Obama has endorsed and published both. The Executive Order has the potential to significantly impact the U.S. private sector because it is possible that cleared defense contractors doing business with the federal government will be required to meet the same insider threat requirements set out in the National Insider Threat Policy. Insider threat encompasses fraud, theft of intellectual property, cyber sabotage, and espionage. Mrs. O’Brien will discuss indicators and examples of a potential insider.

The Lincoln Memorial University Law Review will publish a dedicated symposium issue related to the Symposium’s theme. The Lincoln Memorial University Law Review welcomes submissions for this specially-themed issue, which will be comprised of several articles, notes, and essays bringing together leading experts on the theory, application, and scholarly analysis of these contemporary national security issues.

To be considered for publication in the symposium issue, please contact Jacob Baggett, Editor-in-Chief, at jacob.baggett@lmunet.edu.

For more information regarding the issue or the Symposium, contact either Assistant Professor Matthew Lyon, Faculty Advisor to the Law Review, at matthew.lyon@lmunet.edu, or Associate Professor Melanie Reid at melanie.reid@lmunet.edu.

Current Issue: Volume 1, Issue 2 (2014)

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Volume 1, Issue 2
LMU Law Review