Taking over the National Security Division is David S. Kris, a former Justice official who served under Presidents Bill Clinton and George W. Bush, and who witnessed firsthand the efforts to conduct warrantless wiretapping earlier this decade. But Kris was not supportive of the Bush administration’s clandestine spying on American communications, and spoke out against the moves after leaving the Department of Justice.

 

After growing up in Brookline, MA, Kris graduated with a bachelor’s degree from Haverford College and a JD from Harvard Law School. Kris then clerked for Judge Stephen Trott of the Ninth Circuit.

 

He joined the Department of Justice in 1992 through its honors program, arguing appeals and conducting trials across the country. Kris rose up through the ranks, eventually becoming associate deputy attorney general. His unclassified responsibilities from 2000-2003 included supervising the government’s use of the Foreign Intelligence Surveillance Act (FISA), representing the Justice Department at the National Security Council, briefing and testifying before Congress, and assisting the attorney general in conducting oversight of the US Intelligence Community.

 

While still at the Justice Department, he advised his boss, Deputy Attorney General Larry Thompson, not to sign a mysterious batch of wiretapping warrants requested by the White House because intelligence officials would not reveal how the information in the wiretaps was obtained. Kris was an early advocate of the idea of creating a separate national security division at the Justice Department, apart from the criminal division. The national security division was created in 2006, after Kris left the department.

 

Kris then became deputy general counsel, chief ethics and compliance officer and a senior vice president at Time Warner Inc. He has also served as an adjunct professor of law at Georgetown University and a nonresident senior fellow at the Brookings Institution. He is the author or co-author of several works on national security law, including the treatise, “National Security Investigations and Prosecutions.” He joined the Obama transition team following the 2008 election.

 

 

Kris attracted significant public attention in March 2006 when he released a 23-page legal memorandum, in his personal capacity, sharply criticizing the Bush administration’s legal argument that it had authority to conduct warrantless domestic wiretapping based on the Authorization for Use of Military Force Against Terrorists act passed by Congress on September 18, 2001. Law professor Marty Lederman called Kris’ memo “by a large measure the most thorough and careful—and, for those reasons, the most devastating—critique anyone has offered of the DOJ argument that Congress statutorily authorized the NSA program.”

 

In an email exchange with Courtney Elwood, an associate counsel to Attorney General Alberto Gonzales, Kris debated the legal arguments regarding the Fourth Amendment implications of the warrantless domestic spying and the administration’s “unitary executive theory” of Article 2 of the US Constitution.

 

As the head of DOJ’s National Security Division, Kris will not only oversee intelligence and national security law but may also be responsible for assessing how and whether detainees now held at Guantánamo Bay can be tried in American criminal courts.

 

David Kris—Time Warner (Ethisphere)

Modernizing the Foreign Intelligence Surveillance Act (by David Kris, Brookings Institution)

Searching the Haystacks (by David Kris, Slate)

Testimony of David S. Kris before the Committee on the Judiciary, United States Senate (PDF)

A Thorough Debunking of the "Statutory" Argument for the NSA Surveillance Program -- But Alas, Congress Doesn't Care (by Marty Lederman, Balkinization)

Ex-Justice Lawyer Rips Case for Spying (by Dan Eggen and Walter Pincus, Washington Post)

Kris Memo on NSA Spying Program (PDF)