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The National Surveillance State and the Next Administration

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Panel Summary

The United States is drifting toward a National Surveillance State, but what the Next President should do is not clear. End the domestic surveillance program? Close down the fusion centers? Take the surveillance cameras off the city streets? Stop passenger screening? If only it were so easy. Experts commentators and former government officials will look at the challenges and opportunities for next administration.


Moderator: Marc Rotenberg, Electronic Privacy Information Center (EPIC)
Elise Ackerman, San Jose Mercury News
Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment; Director, The Information Society Project at Yale Law School
Aziz Huq, Director, Liberty and National Security Project, Brennan Center
Alan Charles Raul, Partner, Sidley Austin; Former Vice Chairman of the White House Privacy and Civil Liberties Oversight Board

Detailed Description

Professor Jack Balkin has warned that the United States is "rapidly moving toward a National Surveillance State." The evidence is clear: more surveillance, less oversight; more profiling, less accountability. What is the next President to do? This panel will present high-level perspectives from expert commentators and former government officials on the challenge. The panel will benefit from both the exchanges among the participants and the opportunity for CFPers to ask the experts about past problems and future solutions.

This panel also comes with an excellent reading list. Several of the panelists have written extensively on the civil liberties problems of the Bush years. But so far there has been little discussion about what the next President should do differently. That discussion could begin on this panel at CFP 2008.

The Candidates on the Issues

Bob Barr, "Individual Liberty"

Hillary Clinton, "Issues"

John McCain, "Issues"

Ralph Nader, "Issues"

Barack Obama, "Issues"

Reading and Resources

Jack Balkin, "The Party of Fear, the Party Without A Spine, and the National Surveillance State," Balkanization (Aug. 5, 2007)

Jack Balkin and Sanford Levinson, "The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State", Yale Law School, Public Law Working Paper No. 120, Available at SSRN (2006).

EPIC, "The 9-11 Commission Report"

Aziz Huq, "Twelve Steps to Restore Checks and Balances" (Brennan Center for Justice 2008]

The Library of Congress, "Implementing Recommendations of the 9/11 Commission Act of 2007"

National Commission on Terrorist Attacks Upon the United States (the "9-11 Commission")

Privacy and Civil Liberties Oversight Board, "First Annual Report to Congress: March 2006 - March 2007"

Alan Charles Raul (Vice Chairman, Privacy and Civil Liberties Oversight Board), "Testimony before the House Judiciary Subcommittee on Commercial and Administrative Law" (July 24, 2007)

Jeffrey Rosen, "A Card-Carrying Civil Libertarian," The New York Times (Mar. 1, 2008)

Frederick A.O. Schwartz and Aziz Z. Huq, "Unchecked and Unbalanced: Presidential Power in a Time of Terror" (New Press 2007)

Marc Rotenberg, "The Sui Generis Privacy Agency: How the United States Institutionalized Privacy Oversight After 9-11" SSRN (Sept. 28, 2006)

The White House, Privacy and Civil Liberties Oversight Board


AALS Section on National Security Law

In connection with the January 2009 annual meeting of the Association of American Law Schools in San Diego, the AALS Section on National Security Law plans to sponsor a panel discussion entitled â€œNational Security Law Advice to the New Administration.â€

To complete the roster of panelists, we are seeking submissions of papers relating to this subject. Eligible papers might address the subject of the advice in many different ways. For example, papers might focus on a discrete ongoing problem, such as detention and trial of accused terrorists or reform of surveillance laws. Alternatively, papers could offer theoretical or historical perspectives, or develop recommendations concerning humanitarian intervention or measures to better ensure human security; or engage in a memorandum-style set of recommendations across a range of national security law problems. Creative approaches are welcome, and everyone is eligible to submit. Both essay and article-length papers are welcome.

The winner will participate in the Sectionâ€™s panel discussion at the annual meeting, which will take place from 8:30 until 10:15 on Thursday, January 8, 2009, in San Diego. The winnerâ€™s article also will be published in short-form in the National Security Law Report (the periodical of the American Bar Associationâ€™s Standing Committee on Law and National Security) and at full length in the Journal of National Security Law & Policy (subject to final approval of the article from the editors of that publication).

The winner will be selected by a review committee consisting of members of the Executive Committee of the Section on National Security Law. Submissions should include:

a cover letter confirming the authorâ€™s willingness to participate in the panel event in San Diego; a c.v.; and the draft article itself (we will accept abstracts accompanied by outlines as well).

Please email submissions (or questions) to with the attachments in Word, Word Perfect, or PDF format if possible. The deadline to email a submission is August 15, 2008.