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Before Sept. 11, 2001, few people outside intelligence circles had ever heard of the Foreign Intelligence Surveillance Act or the obscure Foreign Intelligence Surveillance Court. Even fewer had heard of 36-year-old Justice Department attorney David Kris. Today FISA slips off the tongues of Hill staffers and Washington policy wonks, as if they have always known the ins and outs of the 1978 law governing foreign intelligence wiretaps and searches. Largely responsible for explaining it to them is Kris — a quick-witted Harvard Law School grad whom colleagues have nicknamed “Mr. FISA.” Remember that controversial ruling from the Foreign Intelligence Surveillance Court that blocked new DOJ policies for using FISA and triggered the first-ever appeal to the super-secret FISA review court? Kris drove the effort to write the policies and draft the legal briefs. He also argued the case before the lower court. Solicitor General Theodore Olson handled the case on Sept. 9 before the three-judge appeals court that ultimately approved the new policies — tearing down a decades-old wall separating law enforcement and intelligence operations. The landmark decision overturned 20 years of legal thinking that using FISA surveillance to gather evidence for criminal prosecutions would violate the Fourth Amendment. Ask Kris about the remarkable victory, and he demurs, joking with characteristic humility: “We hired a better lawyer. Of course we had a better result.” Not surprisingly, few people seem to agree with his analysis that Olson’s advocacy skills were the only deciding factor. “David is one of the brightest people I have ever met,” says one former colleague. “The guy is a brilliant lawyer.” Kris joined the Criminal Division’s Appellate Section in 1992, after clerking for Judge Stephen Trott on the U.S. Court of Appeals for the 9th Circuit. In July 2000, he was recruited to join the deputy attorney general’s office, where he participated in a working group reviewing FISA procedures. “When I joined the office I didn’t know FISA from the FICA taxes they take out of my paycheck,” Kris jokes. As his work in the area expanded, Kris sought more hands-on experience and began reviewing FISA applications in the DOJ Office of Intelligence Policy and Review. “I felt like ground-level experience would help me make better policy decisions,” he says. After Sept. 11, the department’s political leadership called on Kris to help draft two critical amendments to FISA included in the USA Patriot Act. Kris negotiated precise wording with Senate staffers and testified before congressional committees on what the changes would mean. His position as a career DOJ attorney helped him earn the respect of Democrats. “Quite frankly, if it had been handled by a political person, it would have been viewed as a power grab by the Justice Department,” says one Senate Judiciary Committee staffer. “David Kris has enormous credibility.”

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