29 Brook. J. Int'l L. 175 (2003-2004)
Striking the Balance: National Security vs. Civil Liberties

handle is hein.journals/bjil29 and id is 183 raw text is: STRIKING THE BALANCE: NATIONAL
SECURITY VS. CIVIL LIBERTIES
Robert N. Davis*
I. INTRODUCTION
A     merican national security law has come full circle. Be-
tween 1945 and 1978, the intelligence community and the
executive branch used the national security legal structure to
monitor organizations and intrude on the civil liberties of
American citizens.1 Critics argued that the executive branch
abused its intelligence collection power during the Cold War in
the name of national security.2 The Foreign Intelligence Sur-
veillance Act (FISA)3 was passed in 1978 after findings that
intelligence agencies had abused the privacy rights of Ameri-
cans.4 FISA was an attempt to provide greater protection of
civil liberties by erecting a wall between intelligence collection
and law enforcement Civil liberties organizations now argue,
however, that the wall is being eroded by the passage of the
Uniting and Strengthening America by Providing Appropriate
* Professor of Law, Stetson University College of Law. Professor Davis
teaches international security law and policy, is a member of the ABA Stand-
ing Committee on Law and National Security and is an active member in the
United States Navy Reserves. Professor Davis would like to acknowledge the
excellent research assistance of third-year law student, Sarah Stork.
1. SUPPLEMENTARY DETAILED STAFF REPORTS ON INTELLIGENCE ACTIVITIES
AND THE RIGHTS OF AMERICANS, BOOK THREE, FINAL REPORT OF THE SELECT
COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO
INTELLIGENCE ACTIVITIES, S. REP. No. 94-755, at 740 (9th Cong. 2nd Sess.
1976), The Assassination Archives and Research Center, available at http:l!
www.aarclibrary.org/publib/church/contents.htm [hereinafter Church Report
Book Three].
2. Before the United States Senate Judiciary Committee, Subcommittee on
the Constitution, Federalism, and Property Rights, 107th Cong. (Oct. 3, 2001)
(testimony of Dr. Morton H. Halperin, Senior Fellow, The Council on Foreign
Relations and Chair, Advisory Board, Center for National Security Studies),
Center for Democracy and Technology, available at http://www.cdt.org/secu
rity/011003halperin.pdf [hereinafter Halperin Statement].
3. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92
Stat. 1783 (codified as amended in scattered sections of 50 U.S.C. (1994)).
4. Halperin Statement, supra note 2, at 1.
5. Halperin Statement, supra note 2, at 2.

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