Emptywheel and I had a brief conversation about whether or not this book would be suitable for Book Salon, and it probably isn’t. You see this book is an over 500 page (maybe 1,000 page if you count the appendices) reference book for lawyers. Not really a general audience kind of book.
So, why am I writing about it anyway? Because this book, called National Security Investigations and Prosecutions, by David Kris and Douglas Wilson appears to be the most up to date, comprehensive treatise on this area of law yet available.
Actually, the title is somewhat misleading, because the book covers much more than simply National Security investigations and Prosecutions. Much, much more. It includes chapters on not only FISA surveillance, but other methods of both electronic and physical surveillance. This is also a superb primer on investigative techniques.
The book lays out the historical context of how these techniques developed, traditional uses and restraints upon them. It talks about how the National Security community was formed and how it developed. This treatise is a history book, it’s a training manual of sophisticated investigative techniques, and it is also a roadmap for the intersection of intelligence investigations and the Constitution. It’s got it all, baby.
The summary of contents is itself educational.
Unfortunately, the book is not available to me in electronic form, so all quotes will be laboriously hand typed by me. I tell you this, so you will not mis-attribute any typos in the quotes to sloppy work by the authors or editors or publishers. It will merely be my usual lousy typing.
As the preface by the Hon. Royce Lamberth, former presiding judge of the Foreign Intelligence Surveillance Court (the FISA court) points out
The book offers a special advantage for those who seek to understand, influence, or create national security law and policy: in exchange for an initial investment of careful review, it pays an enduring dividend of informed opinion.
Judge Lamberth went on to describe the book as
….the single best treatment of the topic that I have ever seen. Rich in scholarly analysis, it is also highly practical and impartial. The seamless integration and clear exposition of legal theory, public policy and operational reality is unique to the field, and should serve as a crucial buttress to wise and effective legislation, executive action and judical review.
[again, emphasis mine]
I don’t want to see my Members of Congress ignorantly voting for any more sledge hammer of national security legislation that just atomizes our Constitutionally protected freedoms. The kind of crap legislative products we have seen out Congress since 9-11.
I am sick of bills drafted in ways that overlap and contradict existing law, bills they don’t read or don’t understand the contents of, bills whose actual language does not do what the press release and bill summary claim it does. I want them to craft and vote for surgical and precise legislation that brings the greatest amount of investigative and prosecutorial bang for the buck, while doing the least and only unavoidable violence to the Bill of Rights.
In order for that to happen, EVERY MEMBER OF CONGRESS needs to educate themselves about this area of law and how it plays out operationally. In order to be minimally qualified to vote upon this kind of legislation, they need to have this book on their shelves. And they need to refer to it often.
By the time I get around to asking the authors to sign it, my copy of this book is going to be so covered in multiple colors of highlighter, tipped with sticky flags and post-its and generally showing all the signs of the Velveteen Rabbit treatment, that the authors might be afraid to touch the, soon to be grimy with use, tome.
This is going to sound funny, but considering that it is a scholarly work, and meant for a narrow field, it is a surprisingly pleasant and accessible read so far. OK, maybe not beach reading (though I may take there this afternoon), but certainly something you don’t necessarily have to be a lawyer to understand.
So, listen up beloved and esteemed members of both Houses, before you try to “fix” all the legislative messes you have made with respect to National Security Law, take a little time to ACTUALLY LEARN SOMETHING ABOUT WHAT YOU ARE TRYING TO DO. It will make things so much easier for you, and so much less frustrating for the rest of us.
[Note to Thompson West publishing: if you don’t put an image of the book’s cover online, no one can show what the book looks like. This is an important book and deserves intelligent marketing. At the very least, basic information should be available so that somebody can get the word out.]