I think if judges were more knowledgeable about the terrorist threat, they would see how the Constitution can be interpreted in a way that, you know, protects civil liberties adequately but doesn't cripple our counterterrorist effort.Of course, there's a lot of flexibility in putting it that way, using "adequately" and "cripple."
The key problem for Judge Posner is the " imbalance" in what our "generalist" judges know:
The judges think they know lot about civil liberties, and they don't know anything about terrorism, so when they're confronted with a civil liberties issue involving terrorism, they're much more likely to give weight to the civil liberties concerns, because that's what they know about than the terrorist concerns, which they don't know about.Some judges, he notes, will deal with their lack of knowledge by deferring to what the government wants to do, but most don't.
There's lots more in the interview. Go listen.
IN THE COMMENTS: JohnF writes (aptly!):
The podcast Ann links to is absolutely terrific. It's pretty much all Posner. I think summarizing it cannot do it justice, but here are some of the points he makes, in addition to the ones Ann quotes:
1. There are two prevalent metaphors for dealing with the terror threat -- all out war (the WWII metaphor) or police action (the crime metaphor). However, unlike WWII, we can't always tell who the enemy is; and our criminal justice system is designed not to prevent all crime, but to control it to acceptable levels. We need an approach gauged to prevention.
2. The worst thing that could happen to civil liberties is another attack. Many civil libertarians lose sight of this.
3. Many civil libertarians are in denial. They must diminish the severity of the threat in order to be convincing that the government needn't be as active as it is trying to be.
4. People never had the degree of privacy they have now (he gives telegraphs and party telephone lines as examples). Moreover, people today give up their privacy routinely and often in trivial circumstances. Whenever you order from Amazon, you are aware a database is being tweaked about you; all your emails from your employer are totally open to his inspection, etc. A small reduction now is not a big price to pay.
5. His suggestion: (a) liberal government surveillance for national security, (b) no use of anything discovered during the surveillance for any purpose (i.e. prosecution) beyond national security, and (c) careful records kept of the surveillance that would be reviewed by some one, e.g., some Congressional committee, to insure the surveillance was being done for national security purposes. He recognizes that there could be abuses, but believes they would be minor.
In all, it was a fascinating talk, with very engaging discussions of some foreign approaches to security, some English history, and a brief discussion of current events in terrorism, from Heathrow to Judge Taylor.
Posts
57 comments:
I think that the timing of this is most likely tied into the recent decsion in the MI ACLU v. NSA case by Judge Taylor, where she found a 1st Amdt. violation based on chilling of speech and association of the plaintiffs with known or suspected al Qaeda, based apparenty on the later reducing, if not eliminating, electronic communications with the plaintiffs.
The problem I see is that she used classical 1st Amdt. analysis in coming to her decision, not taking into account that international communications with known or suspected enemies in a time of war have always been chilled throughout our history. She gave short shrift to the government's compelling state interests, and a lot of weight to the plaintiffs' rights under the 1st Amdt.
The problem I see is that there is a statute, FISA, that is established as the exclusive means for surveillance.
The President may have had such unregulated power to spy before FISA, but Youngstown is dispositive of ths issue of whether or not Congress can regulate; it can, it did, and it still does, "new kind of war or not."
And the Administration doesn't really want this question adjudicated anyway; it tried to get the case dismissed on "state secret" grounds, and barely defended it on the merits.
Lastly, I am not quite sure why the Administration is so reluctant to getting warrants. The FISA court has basically been a rubber-stamp court.
Some judges, he notes, will deal with their lack of knowledge by deferring to what the government wants to do, but most don't.
Deference only works when the person or entity whose judgment you are deferring to actually has more expertise than you do.
In this country, we have a military with a professional officer corps -- and I don't mean "professional" as a generic compliment, but as opposed to the old practice of nobles buying a commission for their wayward sons. Accordingly as a judge I would feel comfortable in at least some circumstances deferring to the military on military issues. By contrast, the government anti-terrorism bureaucracy is currently structured essentially as a political patronage vehicle, and I don't have any confidence in their judgments.
I'm not sure how one would or could articulate that distinction as a rule of law, however.
A judge deferring to one party in a lawsuit because he's clueless? That's even more nuts than only taking into account the part of the case he does understand.
How about the judges learn what they need to? Let 'em earn their pay. Doing your homework is not unheard-of in other fields.
But I think the problem here is more along the lines of people believing that, since civil liberties are good in and of themselves, therefore anything you do (or are seen to go through the motions of pretending to do) to increase civil liberties (or anything advertised as civil liberties) must therefore have good results. You see that kind of "reasoning" a lot (and not exclusively from the left), but it's an obvious non sequitur.
Rex:
Is Youngstown really as dispositive as you suggest on this issue?
Is taking over a steel company really analogous to intercepting a foreign enemy's communications into our country?
To answer vnjagvet:
Yes.
Hamdan too.
After 9/11, the President could have gotten ANYTHING he wanted from Congress, but yet he still wnet ahead and did this in secret.
Again, it is extremely interesting that the Administrtation does not really want this litigated; otherwise they would not have tried to dismiss on "state secret" grounds.
Youngstown is not dispositive, and in particular, what everyone is pointing at is Justice Jackson's concurrence there that divides executive action into three categories, with the third category being where the executive acts contrary to the expressed will of (some) Congress, and, therefore, the executive's power is at its lowest ebb there.
Up until the Hamdan case this year, the Jackson concurrence had never been picked up by more than a Justice or two over the 60+ years of its existance. Indeed, in Hamdi, while all the Justices cited Youngstown, only two of the most liberal cited Jackson's concurrence.
The problem with the currently voiced intepretation of Jackson's concurrence is that it does no balancing between the Article I powers of Congress and the Article II powers and responsibilities of the president. This was fine when President Truman was so obviously trampling on Congress' powers to regulate Interstate commerce by attempting to seize domestic steel mills becaue of strikes. Clearly, primarily domestic. But the NSA TSP is far different, arguably almost as far into the Executive's core Article II powers and responsibilities as you can go, and so some balancing would seem to be in order. I should also note that Hamdan is easily distinguished, as it falls into an area that is historically controlled by Congress.
Of course, none of us know what the Supreme Court will do with the TSP if and when they get the case, but I have suggested all along that this is one place where they are far more likely to defer to the Executive than to Congress. They are not about to shut down an ongoing international and foreign terrorist surveilance program deemed important to national security by the President, as was attempted by Judge Taylor, on the theory that the Executive should always defer to Congress, etc. They won't do this for a lot of reasons, one important one being that they would have blood on their hands if the TSP would have thwarted the next 9/11 type attack, and they had shut it down.
The alternative is that maybe they are asserting the State Secret privilege because they really don't want to disclose classified operational information on the grounds that doing so might help our enemies.
Noah has a good point. The ACLU briefs blythely asserted that the 72 hour Emergency Orders provision should be sufficient for the NSA's purposes, without any evididence whatsoever, except for wishfull thinking, and in the face of repeated assertions by the one person who would know, the AG, since he is the one who has to sign them, and his people have to prepare them.
Bruce and Noah:
Just so.
Rex:
I think you had better get back in the cases.
I think that it is a far reach to suggest that the nations intelligence gathering apparati are staffed by political patronage. You may see some of this in what the President does not consider posts essential to national defense, but I haven't seen indications that it is so where it counts: Defense, State, National Security Advisor, CIA, NSA, etc.
Besides, one of the complaints made by the ACLU was that shift supervisors were making the calls at the NSA with the TSP. These are not political appointees, but rather have invariably spent their careers working in intelligence and are most likely either covered by civil service or military rules.
I would find the suggestion more persuasive if the suggestion had been that many of the appointees (esp. at DoJ) were partisan. Nothing new there - just think Janet Reno and Jamie Goerlick as the tip of the iceburg in the Clinton DoJ. Indeed, the top DoJ appointed DoJ attys. below the AG do seem to be some of the most partisan appointees of this Administration, and that may have factored into the Administration's approach here.
Yes, I have been paying attention and I have read the cases.
Noah said: "I've not seen enough information about the program to know whether obtaining warrants was/is feasible. If not then the national security interest is enough for me."
If obtaining warrants were not/are not feasible, then I suspect there is something less than probable cause.
This really is the crux of it--I do not trust the Executive branch, institutionally. Not because it's Bush, but because it's the Executive.
How do these "suspected" terrorists beoome "suspected"? There is nothing other than the Administration's say-so, which purportedly is unreviewable.
[The Supreme Court is] not about to shut down an ongoing international and foreign terrorist surveilance program deemed important to national security by the President, as was attempted by Judge Taylor, on the theory that the Executive should always defer to Congress, etc.
Probably not, but they might find that some surveillance conducted under that program was illegal, on the theory that there is a criminal statute prohibiting warrantless surveillance on "United States persons." The Executive still has to defer to federal law, right Bruce? Or is that pre-9/11 thinking on my part?
First, everyone, listen to the podcast! Posner doesn't say he's for the second alternative. He thinks both of those options are inadequate.
Rex Saxi said..".The problem I see is that there is a statute, FISA, that is established as the exclusive means for surveillance. The President may have had such unregulated power to spy before FISA, but Youngstown is dispositive of ths issue of whether or not Congress can regulate; it can, it did, and it still does, "new kind of war or not.""
I'm not sure why you think this is responsive to the podcast, where Posner is talking about how to interpret the Constitution, but in any case, you have misunderstood Youngstown. The existence of a statute limiting the President is most emphatically not "dispositive of ths issue of whether or not Congress can regulate." That's just plain wrong. Reread Youngstown. Clearly, there are some areas of exclusive presidential power.
rex, let me address the core of your points, as I understand them:
"The problem I see is that there is a statute, FISA, that is established as the exclusive means for surveillance."
As I understand it, FISA is exclusively applicable to domestic surveillance, which, contrary to the approbation commonly attached, the TSP most particularly was not. I have read many articles that do specifically question the applicability of FISA to the TSP.
"I am not quite sure why the Administration is so reluctant to getting warrants."
Mainly timeliness. As James Carafano said on Jan 27, the FISA warrent process was designed in the traditional "we have a suspect and we want to intercept the communications from this phone." The TSP, however, not only was essential to find who the suspects are but also allowed the NSA to follow these suspects from one disposable cell-phone to another without the delay in finding out which phone was going to be used and then going through the courts to get an applicable warrent before that new phone was discarded.
"After 9/11, the President could have gotten ANYTHING he wanted from Congress, but yet he still wnet ahead and did this in secret."
For two main reasons: secrecy is important in surveilance operations and the White House counsel and NSA counsel advised him it was within his authority to do so. Please do nto fail to note that this program and its results was frequently briefed to select members of Congress (of both parties) with no concerns of legality being raised.
"Again, it is extremely interesting that the Administrtation does not really want this litigated; otherwise they would not have tried to dismiss on "state secret" grounds."
Again, when you are surveiling someone you do not want them aware you are doing it or how you are doing it. Details about what was/is done in the course of the TSP has applicability to a wide array of surveillance and intelligence collection activities ongoing, past and planned. If we are to believe the testimony of the plaintifs themselves, we have evidence that suspected al Queda contacts have purposefully altered their communications patterns on trivial, no-operational matters based only upon the revelations in the NYT. How much more might they change their communications to further complicate our collections efforts if greater detail were revealed in court?
While I appreciate your admission that your discomfort is based upon an inate distrust of the Executive, I must counter that surveillance to find out who the enemies are does not required "probable cause." To be blunt about it, even the Fourth Amendment only requires that searches not be "unreasonable." I do not believe in asking the Government to do what we should, ourselves, do, but I would be hard oressed to think of another area in which the Federal Government has a more explicit and compelling mandate than national security.
[Disclaimer: Unresponsive to podcast]
Ann -
Could you please come out and say that you believe FISA to be an unconstitutional encroachment on Executive power?
I won't even ask whether or not it should have thus been (further) amended rather than violated in secret.
Just come clean and embrace your inner authoritarian.
Doyle
My answer is a definate sometimes.
Congress can overreach, just like the President can. That a law has been passed and enacted is not dispositive that it is Constitutional, esp. when it infringes core Article II powers and responsibilities of the Executive.
Sorry Ann about getting far afield here. We have hashed out FISA here and elsewhere in the past, and Posner points are really more interesting because of that.
Bruce:
"[I]n Hamdi, while all the Justices cited Youngstown, only two of the most liberal cited Jackson's concurrence."
Scalia is now one of the two most liberal Justices on the court?
In Hamdi, the two opinions which were most restrictive on the President, Scalia's and Souter's, cited Jackson's concurrence, and Thomas (who took the least restrictive view) cited it too.
Rex Saxi said...
"After 9/11, the President could have gotten ANYTHING he wanted from Congress, but yet he still wnet ahead and did this in secret."
In order for surveillance to work, the surveilled must be ignorant of the surveillers. Thus, I cannot understand how anyone can be surprised that the government wants to keep their surveillance programs a secret. "Duh" comes to mind. And on similar lines, even if Congress had been willing to give the administration anything they wanted, even if the Congress had the power to pass such things as "secret laws", Congress keeps secrets like a sieve keeps water.
Thus, I cannot understand how anyone can be surprised that the government wants to keep their surveillance programs a secret.
When he was drumming up support for the PATRIOT Act, Bush went into some detail on the "flexibility" it would provide to law enforcement. He described how "roving" wiretaps differ from regular wiretaps.
The US government has the capability to spy on just about anyone, and I'm happy for that. But I can't understand
a) how you think the terrorists are going to get around using phones or financial institutions; or
b) why there is such willingness by Americans to grant the government the ability to spy on its own citizens without showing cause.
Doing so will not help them catch suspected terrorists. It will only let them cast a wider net over the suspicious and innocent alike, and thus render our country a police state in a very real sense.
The podcast Ann links to is absolutely terrific. It's pretty much all Posner. I think summarizing it cannot do it justice, but here are some of the points he makes, in addition to the ones Ann quotes:
1. There are two prevalent metaphors for dealing with the terror threat--all out war (the WWII metaphor) or police action (the crime metaphor). However, unlike WWII, we can't always tell who the enemy is; and our criminal justice system is designed not to prevent all crime, but to control it to acceptable levels. We need an approach gauged to prevention.
2. The worst thing that could happen to civil liberties is another attack. Many civil libertarians lose sight of this.
3. Many civil libertarians are in denial. They must diminish the severity of the threat in order to be convincing that the government needn't be as active as it is trying to be.
4. People never had the degree of privacy they have now (he gives telegraphs and party telephone lines as examples). Moreover, people today give up their privacy routinely and often in trivial circumstances. Whenever you order from Amazon, you are aware a database is being tweaked about you; all your emails from your employer are totally open to his inspection, etc. A small reduction now is not a big price to pay.
5. His suggestion: (a) liberal government surveillance for national security, (b) no use of anything discovered during the surveillance for any purpose (i.e. prosecution) beyond national security, and (c) careful records kept of the surveillance that would be reviewed by some one, e.g., some Congressional committee, to insure the surveillance was being done for national security purposes. He recognizes that there could be abuses, but believes they would be minor.
In all, it was a fascinating talk, with very engaging disucssions of some foreign approaches to security, some English history, and a brief discussion of current events in terrorism, from Heathrow to Judge Taylor.
simon -
Exactly, and that's why the Gang of 8 rather than the full Intelligence Committee was informed, and you have to conclude that the 4 Democrats in the Gang were basically okay with that approach. They've tried to say that they were somehow prevented from objecting because of their secrecy requirements, but that doesn't make sense.
They can't talk to each other? They can't research the relevant laws, if they think there's a massive constitutional crisis at stake? They can't insist at meetings for more info or they will do something? There's no evidence they did, other than the strange cya Rockefeller memo.
Doyle -
This are good points but my understanding, of which I'm not sure beause we really don't know enough, is that the admin believes the instantaneousness of this procedure is valuable, and is something terorists might not have counted on. Switching cell phones quickly but not too quickly, perhaps. So it might have been a temporary advantage, I suppose. But again, we reallt don't know some specifics of the operational issues.
I've heard reference to but haven't much read up on a suggestion that the famous '3-days-later' provision is not all it's cracked up to be.
I don't understand your fear, Doyle. I can't really believe that Bush and Cheney get their jollies just going through my bank statements, totting up my mortgage payments etc. It would make much more sense to presume that high elected officials are rational, self-interested actors who recognize that preventing terrorist attacks is a good way to keep their jobs, and allowing such attacks is a good way to lose those jobs. Thus we would expect Bush et al. to move heaven and earth to prevent terrorist attacks, not to put a lot of energy into activities that will (in your words) "not help." Why should we believe that they are so much stupider than you?
Doyle said...
"I can't understand ... how you think the terrorists are going to get around using phones or financial institutions"
In general terms, a person who is breaking the law who does not suspect that the authorities are on to him will be less careful than a man who has good reason to think that they are. The best case scenario is that a terrorist cell working in the U.S. agrees with you and gives up! Sadly, I doubt that will happen. And specifically, with regard to the data mining program, before that came to light, no terrorist had any reason to be more careful about his calls, while after it came to light, he knew not only to be careful, but which networks on which to be careful, and which networks he could use with impunity.
"[these programs] will not help them catch suspected terrorists."
It is debatable as to whether they may yet be helpful or have already been helpful, but it is absurd for you to claim - on no basis beyond the truthiness of your own intuition that these programs will not help the government prevent future terrorist attacks. The government -- which has far better tools to evaluate the threat and formulate appropriate responses than do you -- evidently believes that it will.
When are liberals going to learn, by the way, that when they talk about how the administration is creating a police state, they forfeit any semblance of credibility? Healthy mistrust of government is one thing, but the blather about police states and supression of debate bespeaks an entirely unwarranted level of paranoia, and moreover, a total ignorance of what is actually involved in a police state. Regardless of the substantive quality of your argument, your rhetoric makes you come across as the little girl yelling "this house is like Russia!" at the parent who told her that she couldn't go out to play until her bedroom was tidy.
But I think this BDS also has a deeper ramification, which is that you seem to start from the basic presumption that the Bush administration is looking for an opportunity or excuse to impose a police state. You start from the assumption that Bush is evil, and then look for evidence - or anything resembling it - to support that view, and that affects both your perception and your credibility.
Simon -
My claim that warrantless surveillance does not help catch suspected terrorists hinges on the word "suspected." The government can already conduct lawful surveillance on those US persons who can be reasonably suspected of terrorist connections. They just need to show some semblance of evidence.
On the BDS accusation? To quote Walter Sobchak: "Calmer than you are."
Sean -
I can see how the "motive" issue looks thorny. But it's not a question of how Bush/Cheney "get their jollies," as much as it is a question of what they have the power to do and what they don't.
I think we can all agree that the power to eavesdrop secretly on telephone communications is a pretty consequential one.
It makes sense to allow the NSA to use it in the interest of preventing terrorism, but it makes no sense to allow it to extend that power beyond those people who can be shown to have terrorist connections.
While I trust this administration less than most, I don't think any ostensibly free country should give this power unfettered to any president.
Doyle,
It's hard to agree that you are more calm than am I vis-a-vis this administration when you are the one accusing the government of attempting to create a police state (the NSA programs "will only let [the government] cast a wider net over the suspicious and innocent alike, and thus render our country a police state in a very real sense"). You make an entirely unsupported assertion that no reasonable person would believe, which really leaves only the possibility that you are not reasonable, at least in this regard.
"I can see how the "motive" issue looks thorny. But it's not a question of how Bush/Cheney "get their jollies," as much as it is a question of what they have the power to do and what they don't."
Unless you are contending that people will necessarily do everything that they can do, you cannot avoid the question of motive. Does a President have the power to do very bad things? Undoubtedly. Then why is it that only Dick Nixon, so infamously, took advantage of that power?
"While I trust this administration less than most, I don't think any ostensibly free country should give this power unfettered to any president."
This President has no unfettered powers. Indeed, subsequent to a predefined date less than three years hence, he will have no power whatsoever, other than "to address the Senate upon appropriate notice to the Presiding Officer" (Senate Rule XIX(8)) - I doubt any dictator envies the awesome power (a power granted, mind you, sustained purely at the whim of the Senate) of former Presidents to add to the volume of hot air in the north wing of the Capitol.
After 9/11, the President could have gotten ANYTHING he wanted from Congress, but yet he still wnet ahead and did this in secret.
If by "in secret" you meant "told the members of the relevant committees in Congress but didn't give public speeches about it, then yeah.
Curiously, that's how all previous wartime Presidents conducted their wartime intelligence operations, too. Strange as it may seem, spying on the enemy is a lot harder when you tell them how and when you'll be spying.
Submandave pointed out with this excellent link to the technical aspects:
http://www.heritage.org/Press/Commentary/ed012706a.cfm
The fundamental problem with FISA versus what we need now is focus of the technology.
1. FISA is focused on US persons, in the context of the cold war, when we were chasing specific Soviet spies. You had a suspect, you developed probable cause, got a FISA warrant and tapped his phones.
2. In this context, the focus is on numbers, without direct association with people, much less US persons. We find a laptop with phone numbers. a number on that lists calls a number in France and that number calls 5 numbers in the US. we want to know what was said in real time. We have NO probable cause to get a warrant on a person yet. If we don't have a warrant, can we capture the calls and listen? or have we just missed the execution orders for the next 9/11? Its only after the fact that we start to ID people and develop names, and probable cause.
"If by "in secret" you meant "told the members of the relevant committees in Congress but didn't give public speeches about it, then yeah."
this old saw again? the members that were "briefed" were told only the barest of outlines and were ordered not to take notes and to not repeat anything they heard. yes, quite the "briefing."
this old saw again? the members that were "briefed" were told only the barest of outlines and were ordered not to take notes and to not repeat anything they heard. yes, quite the "briefing."
The basic outlines of the operation were all they had reason to know, as they were neither in the intelligence services nor in the military. It is the job of the executive branch, not the legislative branch, to prosecute wars and conduct intelligence operations.
As for the ban on talking about the operation -- duh.
And as for the ban on notes -- why would you need to take notes if, as you have said, they were told "only the barest of outlines"? The only purpose notes serve is letting other people read them, accidentally or deliberately.
You know, with the best will in the world, I could stand listening to only about 10 minutes of that podcast.
Posner, bless him, has this meandering delivery that drones and drones. Yes, he has important things to say, but who has the patience to hear him out? (Johnf did, for which I thank him very much.)
The experience reminded me why I generally dislike TV, movies, theater, radio, audio books -- basically, any presentation that unfolds at 1 second per second. Inevitably, I want to speed up delivery or slow it down, or I want to zip back and reabsorb earlier material.
I got far more (assuming he was accurate) from johnf's summary above -- and I absorbed it far quicker than I could have extracted it from listening.
A spoken delivery may be tolerable when you're on the receiving end of fiction. Stories (even novels), at bottom, are meant to be told. But complex and contentious arguments, especially ones hinging on matters where I have little familiarity -- jeez, give me print.
So it's a good thing Posner wrote a book about it, eh?
"A spoken delivery may be tolerable when you're on the receiving end of fiction. Stories (even novels), at bottom, are meant to be told. But complex and contentious arguments, especially ones hinging on matters where I have little familiarity -- jeez, give me print."
Bravo! Recently, a disagreement arose between my company and a client over the number of hours we had billed them. I wrote a summary explaining the bill. They thought it over and asked for a meeting. A meeting! Meetings are a tactic for delay and obfuscation, a way for people to seek ambiguity to leverage for their purposes ("but you said at the 8/29 meeting that..."; "I have no recollection of that being said at that meeting"). If you have a defense, it will represent itself best in writing; if it appears inadequate when expressed in the written word, that probably means it is inadequate. I would have told them to reply in writing or expect to be sent to collections, but sadly, 'tis not my call to make.
"the members that were "briefed" were told only the barest of outlines and were ordered not to take notes and to not repeat anything they heard. yes, quite the "briefing."
Note-taking is typically banned, or at least strongly discouraged at classified briefings. In any case, most people don't want to deal with the hassle of handling their personal notes according to classified information regulations and are happy to not take notes.
If, as Posner says, the Constitution is a "loose garment," and most of the people want what he wants, maybe we should just "change the clothes" and amend the Constitution to provide for the kind of system he/you want.
"[these programs] will not help them catch suspected terrorists."
It is an odd juxtapostion where the right is claiming a new government program is effective, but the left is claiming there is no way that new government program can possibly be effective.
I'm just saying...
It is an odd juxtapostion where the right is claiming a new government program is effective, but the left is claiming there is no way that new government program can possibly be effective.
The conservative position isn't that government can't be effective, but that government can't be *efficient*, particularly compared to the private sector.
There are certain types of government programs which most conservatives and libertarians also feel can't be effective, but those are generally social engineering programs, not military operations.
maybe we should just "change the clothes" and amend the Constitution to provide for the kind of system he/you want
The Constitution doesn't ban most of what the government wants to do (wiretapping, data mining, etc) -- precedent does. Hence no amending is necessary; we need only decide whether we want to adhere to precedent, or modify court rulings in light of new data.
Steve has some good points. The simularity between a true libertarian and a traditional conservative is that both agree that government is a fundamentally and extrodinarily inefficient way to do anything. The basic difference between them is that the conservative views the primary role of government being protecting the people of this country from external threats. And, as a result, the resulting inefficiencies of a military are a necessary evil. And after providing for national defense against external enemies, then the second goal is the provision of civil liberties. But note, and this is where Posner comes in, if you don't protect the country against external threats, then civil liberties can not be protected, and so will, in the end, be lost.
This is, IMHO, the big weakness in the liberal position here, their inability to see that whenever national defense has been sacrificed for civil liberties, civil liberties have been lost to external threats and conquest. Just ask the Europeans of the 1940s where their constitutions went, after being conquered by Germany.
But there does have to be some balancing, and that is part of what Posner has suggested. But not balancing as suggested by the ACLU, which is that civil liberties always triumph, but rather that since the concern with the 4th Amdt., etc. is in criminal prosecution, then make sure that intelligence gleaned for national security reasons is not used for criminal prosecution.
Finally, as to efficiency of government. Government is by its very nature inefficient. Ours is designed to be so. Partly this is a function of lack of accountability through competing mandates - there is no single bottom line, so government beaucracies become self-perpetuating, ultimately working primarily for their own survival and growth, playing off their different constituancies in order to avoid accountability.
The reason that the military is different is that during war time, there is a bottom line. In peace time, the military becomes like other government beaucracies - focused on its own survival and growth, with different factions competing against each other for funding, and with little accountability. But war time has a way of concentrating their attention to one, or just a very limited range of, priorities. We see this in every war - the first couple of years of our Civil War were a disaster for the North, until the peacetime generals were finally dumped, and generals brought in who could and would win. Ditto for WWII, as evidenced by our invasion of N. Africa, in the Korean War, Vietnam under Westmoreland, and even in Iraq, where it took a year or so to push the peace time officers out of the way. It is not pretty, because the primary feedback that makes the military effective is the loss of life.
Seven Machos said...
"Rex -- I'm all for changing the Constitution, and for judges interpreting it based on a strict, narrow reading."
Two days ago, you were complaining that "[d]ecisions from the Supreme Court are often difficult to implement in the real world because ... the deciders just don't understand how average Joes live their lives," the inference from which, it seems to me, can only be that you think the court should consider the practical effect of its rulings. Pragmatism and formalism are diametrically opposed concepts! Which do you want? Do you want a strict, narrow reading of the Constitution, or do you want a reading that pays heed to the practical realities of its implementation?
Seven Machos said...
"The worst thing is a judiciary that is constantly rewriting the Constitution and unaware of realities on the ground ... [Decisions like Roe and Bakke] cause a lot of grief and political heartache. The judges who made them did not understand political reality."
Well, that much I would certainly agree with. But I don't think that the major problem with a decision like Bakke is that it's impractical - the major problem with it is that it fails to comport with the Constitution. It's sometimes a good idea to point out, having discussed the major defect of an opinion, that the opinion fails even by the standards of the task that it sets for itself, but the cart should never be put before the horse. Worse yet, the problem with going after a decision because it is impractical rather than for its real failing is that you then undercut the case for the return to a jurisprudence which does comport with the Constitution - if you put up front the complaint that it is impractical, you lose force when that decision is replaced by one no more constitutional but much more practical. Plus, you have to consider that a decision like Roe was very practical - in point of fact, in some ways, it's probably much more practical to permit abortion than to ban it, once you get into the details, so criticizing it on grounds of practicality not only misses the point, it opens a doorway through which the opposition can run.
Practical considerations are perfectly reasonable when dealing with doctrine - it is not necessarily inappropriate to consider the needs of practical policing when contemplating the exclusionary rule, for example, because that is merely judge-made doctrine that seeks to implement a Constitutional rule, rather than being a Constitutional rule in itself. But - as Scalia pointed out in Hamdi - the Constitution says what it says, practicality be damned. If the government believes it must have a tool to fight terrorism, and the Constituton says the government may not have that tool, the government must seek an amendment or find another tool. Fiat justitia, ruat cœllum.
John,
"How about changing that paradigm and appointing lawyers with FBI or Military Experience?"
Or, at the very least, how about making a point of appointing lawyers with FBI or military experience to the FISA Courts?
Seven Machos said...
"Who gave a district court in Michigan absolute constitutional power?"
Any power which is subject to review by a higher authority which lacks discretion to deny review is, by definition, not absolute.
But of course, the answer is that many people did - the people created the possibility of that power by ratifying Article III; the present office was created by the 95th Congress (see 92 Stat. 883), the incumbent was of course appointed by President Carter.
Seven-
"I would argue that Roe was not practical ... [i]f it was practical, we wouldn't be debating ito some 23 years later."
That we are debating it some 33 years later demonstrates that it is controversial, not that it is impractical. The guillotine is an exceedingly practical method of execution, but I doubt that its reintroduction as a form of capital punishment would be uncontroversial. The NSA program at issue presently may well be practical, but it is not uncontroversial.
noah
I agree with you - one big problem that both libertarianism and socialism / communism share is that they are all utopian. And the problem there is that humans are far from perfect.
My understanding of libertarianism is that they eschew almost all government functions. That ignores that there is a big bad world out there that is filled with people who would like, for any number of reasons, to take away what we have here.
And it is wishful thinking, almost like we see with the utopians above, that IMHO leads us to the point where de minimis possible infringements in civil liberties are put by many here above protecting us from those who would take away most of our civil liberties.
Freder,
You seem to be suggesting that we don't know enough about the NSA TSP program to know whether it truly helps protect this country, but then seem to assume that we do know enough to know that it violates FISA. But the government's briefs in the ACLU case point out that both are unknowable by the public at this point. We don't know, for example, and for good reason, just how many calls are listened to without warrants, nor, whether 4th Amdt. exigent circumstances would apply, etc. Everyone without a security clearance and a Need To Know is guessing, including the ACLU and Judge Taylor.
In your 72 hour warrant suggestion, you are repeating the usual liberal canard and ignoring the only testimony we have seen on the subject: testimony by the AG that the provision is nearly useless because the amount of paperwork, etc. required is not reduced, it just has to be approved by him and submitted to the FISA court w/i 72 hours, instead of the usual month or so it takes to prepare the paperwork.
In short, you have nothing except wishful thinking to back up your suggestion that this would solve the government's problems here, and it flies in the face of the AG's repeated statements and the government's pleadings to the contrary.
As to how FISA is hindering the government, we don't know for sure, because that is classified. But they have given a lot of suggestions as to the reasons. In short, it is an obsolete law aimed at a very different threat and anticipating very different technology. In this context, esp. with disposable cell phones and the like, it just doesn't let the government act fast enough.
Why not litigate it? How would they do that? The pending lawsuits (despite the Taylor decision) lack standing. No plaintiff has been able to show credible harm to a protected interest. And that is not likely to change. The FISA court is not able to hear the case for a similar reason - no case or controversy. Federal courts are not empowered to provide advisory opinions, and that is what you are essentially suggesting.
Simon
That the district ct. in MI could issue an opinion finding the NSA TSP unconstitutional is not really the issue. This is similar to the advise I give clients when they ask whether they can be sued for something - you can be sued for anything.
Rather, the question is whether that court could legally and constitutionally come to that decision, and I would suggest that it couldn't. First, plaintiffs require standing in federal court, and the court crafted a novel 1st Amdt. argument to give them that. But it is highly unlikely to survive appeal, because Judge Taylor in essence held that we have an unfettered 1st Amdt. right to communicate and associate freely with known or suspected enemies during a time of war. That isn't going to stand. And, of course, with no standing, the court doesn't have the legal power to hear the case.
Also, cases have to be heard on real concrete evidence. The ACLU case was decided on guesswork, which the judge refused to divulge. The problem here is that the real evidence is unavailable to the court through the State Secret privilege protecting classified information.
In a similar vein, as I suggested to Freder just above, federal district courts can't issue advisory opinions, and without concrete admissible evidence, that is exactly what they would be doing.
Finally, the government has cited a number of cases indicating that the burden of shutting down ongoing military and intelligence operations is quite high. I doubt that nearly enough evidence will be forthcoming to surmount this.
Freder, ever hear of throw-away cell phones? How long would it take you to trace the number from one of them to a name? Eternity plus an eon or two?
Or, suppose we find, oh, 21 suspects who we have a tip from a reliable source are getting ready to blow 10 airplanes out of the air over the Atlantic. We want to 'tap' (there is no physical 'tap' on cell phones, nor usually on emails) at least 3 numbers for each that they have routine access to, plus pick up any new numbers that are generated.
Please specify, in detail, how you'd get this done within 72 hours.
Oh, yeah, our informant says he 'thinks' the bombing of planes is going to happen in 4 days.
Thanks,
Jorg
Freder Frederson dismissed Jorg's hypothetical as follows:
"If the plot was uncovered so late in the game, there is no time for taps. You are in panic mode, and it is time to just go in and arrest whoever you can and hopefully disrupt the plotters so they cancel their plans. You're breaking down doors, not listening to phone chatter."
Supposing the government takes your advice and just goes in and arrests the plotters. What then? Where is the evidence against them? On what basis can they be kept in custody? Imagine the outcry from CAIR and the ACLU.
Too bad apparently NO ONE in the Bush administration has thought of or, at least, been able to vocalize any of Posner's very reasonable, common-sense opinions.
The simularity between a true libertarian and a traditional conservative is that both agree that government is a fundamentally and extrodinarily inefficient way to do anything. The basic difference between them is that the conservative views the primary role of government being protecting the people of this country from external threats. And, as a result, the resulting inefficiencies of a military are a necessary evil.
Actually, most libertarians have long recognized the need for a military, and the role of the government in protecting the people from external threats. Its just that the Libertarian Party (which in no way represents most libertarians) has drifted further and further towards a policy of simple anarchism, with the usual, um, "optimistic" view of the chance of foreign attack that that entails.
The historical difference between conservatives and libertarians is that the latter place a much higher value on individual liberty, while the former place a much higher value on tradition, societal mores, and other perceived collective goods. Thus a conservative would typically oppose prostitution's legalization on the grounds that it is immoral and destructive to society, while the libertarian would support it on the grounds that the woman's right to control her body trumps other people's offense at the notion.
Freder,
You can't really be convicted based on secret evidence. In order for it to be admissible, you need to build a foundation for it, and that invariably includes proving where the evidence came from.
BTW, as pointed out by the government briefs, one of the big differences between civil and criminal trials as to secret/ classified information is that in a criminal case, the state needs to either disclose what evidence it has and where it got it, or has to dismiss. Civil trials against the government work almost the opposite - without access to the classified information, the courts are supposed to dismiss claims against the government.
As for questioning the AG's statements as to the TSP, etc., at least he has first hand knowledge. You have pure conjecture on your side, backed by NO evidence except for wishful thinking.
Seven Machos
What is scary is that Judge Taylor was able to first grant al Qaeda et al. quasi-rights, in the form of chilling of their speech by the TSP, and then leverage that into standing via reverse chilling of the speech of the plaintiffs.
Thus, the end result, that the TSP chilled the terrorists conversations with people in the U.S., and that was a 1st Amdt. infringement of those in the U.S. resulting in the absurd determination that Americans have an unfettered 1st Amdt. right to speak and associate freely with identified and acknowledged enemies of our country. Weird.
"If someone is four days out from bombing a plane, there better be all kinds of evidence, like maybe bombs."
Not sure you quite caught the terrorist attempt to blow up maybe ten planes flying from the U.K. to the U.S. via combining off-the-shelf items that could be easily smuggled onto those planes.
This plot was not thwarted by finding terrorists with the bomb making materials, but rather through intelligence gathering.
Also, remember 9/11? Remember that some of those terrorists did call home to Afghanistan a day or so before that telling al Qaeda that they were ready to go. Of course, the "Goerlick Wall" kept that information from being used, but that is a different story...
Freder, so all I have to do to get around FISA is to use throw-away cell phones and throw them away every two days and NSA can never get a court okay to 'tap' my phones?
You don't even address the problem, do you? Ignoring it won't make it go away. If every time I change phones the NSA has to start a new procedure to 'tap' me, they'll never get an order. Is that truly what you want? Or are you just scoring points and you don't really care about preventing terrorism?
You made a flat statement that you could use the internet to connect a name to a phone number in minutes.
Back it up, big guy. Show us how you'd use FISA to handle throw-away phones.
I'll take your continuing silence on the issue as an admission that you were earlier talking out your *ss about how easy it is to link phone numbers and names and you know it.
Perhaps there are worse things than conviction, like endless detention on flimsy charges or threats of deportation or internment at Gitmo if you don't confess to great non-existant conspirancies. Look at Jose Padilla, those clowns in Miami, the Lackawana Seven
While it is certainly the case that fear of being labelled enemy combatants encouraged the Lackawanna Six to confess, it is stupid to talk about a "non-existant conspiracy" when it is a matter of fact that they travelled to Pakistan, then secret to Afghanistan, in order to receive jihadist training.
As for the Miami group, you're welcome to offer support for your claims of coercion if you have any. And you'd do well to remember that "nonexistant" is not a synonym for "incompetent and badly thought out".
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