Warrantless Wiretapping, FISA Reform, and the Lessons of Public Liberty: A Comment on Holmes's Jorde Lecture

01 Apr 2009 05:30pm Paul M. Schwartz 

The Jorde Lecture by Holmes burns with the light of clear analysis and calm rationality. In this Essay, I wish to build on it through consideration of its model of “public liberty.” In particular, I discuss how private liberty, and in particular, information privacy, has an important role, indeed is a precondition, for public liberty. I will use the process of amendment of the Foreign Intelligence Surveillance Act (FISA) to illustrate a number of Holmesian lessons concerning past wisdom as codified in law; the impact of secrecy on governmental behavior; and necessary institutional reforms.

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