Fordham Law Review Volume 85 Issue 1 Article 8 2016 Threats Against America: The Second Circuit as Arbiter of National Security Law David Raskin U.S. Attorney in the Western District of Missouri Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the National Security Law Commons Recommended Citation David Raskin, Threats Against America: The Second Circuit as Arbiter of National Security Law, 85 Fordham L. Rev. 183 (2016). Available at: https://ir.lawnet.fordham.edu/flr/vol85/iss1/8 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact
[email protected]. THREATS AGAINST AMERICA: THE SECOND CIRCUIT AS ARBITER OF NATIONAL SECURITY LAW David Raskin* INTRODUCTION For nearly 100 years, the U.S. Court of Appeals for the Second Circuit has been a leading force in defining and resolving the uniquely thorny issues that arise at the intersection of individual liberty and national security. The court’s decisions in this arena are characterized by its willingness to tackle difficult questions and its skill in balancing the needs of the government with the rights of the accused to ensure fundamental fairness in the ages of espionage and terror. I. THE ESPIONAGE PROBLEM AND THE RISE OF THE COLD WAR STATE In 1917, soon after the United States entered World War I, Congress passed the Espionage Act.1 The new law strengthened existing prohibitions on actions harmful to the national defense and, most notably, authorized the death penalty for anyone convicted of sharing information with the intent to harm U.S.