The Heterodox Liberal

Tuesday, January 31, 2006

Judge Richard Posner: Blithering Idiot, Evil Menace, or Both?

Your correspondent read this article in the New Republic with mounting horror. The mere fact that someone let the infamous Richard Posner write about NSA surveillance is worrisome enough (this, the man whose previous op-ed, an attack on the media in the pages of the Times, prompted what must be a historical first: an angry letter-to-the-editor, ripping Posner's "review," from the paper's own executive editor!). The actually content is beyond the pale.

I think I'll just quote the juicy parts with a sentence or two of commentary and let the reader come to his or her own conclusions.

Lawyers who are busily debating legality without first trying to assess the consequences of the program have put the cart before the horse.


"Roper: I'd cut down every law in England to do that! More Oh? And when the last
law was down, and the Devil turned round on you - where would you hide[?]"

So suppose the NSA learns the phone number of a suspected terrorist in a foreign country. If the NSA just wants to listen to his calls to others abroad, fisa doesn't require a warrant. But it does if either (a) one party to the call is in the United States and the interception takes place here or (b) the party on the U.S. side of the conversation is a "U.S person"--primarily either a citizen or a permanent resident. If both parties are in the United States, no warrant can be issued; interception is prohibited. The problem with fisa is that, in order to get a warrant, the government must have grounds to believe the "U.S. person" it wishes to monitor is a foreign spy or a terrorist. Even if a person is here on a student or tourist visa, or on no visa, the government can't get a warrant to find out whether he is a terrorist; it must already have a reason to believe he is one.
-snip-
Once a phone number in the United States was discovered to have been called by a terrorist suspect abroad, the NSA would probably want to conduct a computer search of all international calls to and from that local number for suspicious patterns or content. A computer search does not invade privacy or violate fisa, because a computer program is not a sentient being. But, if the program picked out a conversation that seemed likely to have intelligence value and an intelligence officer wanted to scrutinize it, he would come up against fisa's limitations. One can imagine an even broader surveillance program, in which all electronic communications were scanned by computers for suspicious messages that would then be scrutinized by an intelligence officer, but, again, he would be operating outside the framework created by fisa.


Oh no! That evil FISA! Preventing the government from suspicionless wiretapping of anyone who happens to have had a single phone call with a suspected terrorist -- or everyone in the whole country! Real patriots will tape record theirown conversations and hand them over to the FBI immediately!


But, since the principal fear most people have of eavesdropping is what the government might do with the information, maybe we can have our cake and eat it, too: Permit surveillance intended to detect and prevent terrorist activity but flatly forbid the use of information gleaned by such surveillance for any purpose other than to protect national security.

Yes! And while we're at it, why don't we prohibit the President from lying to start wars! In fact, why don't we prohibit all politicians from lying! And make sure that intelligence agencies only do secret things that we want, not secret things we don't want! We can rely on our magic pink flying unicorns to enforce all of these laws. In fact... why don't we send the magic pink flying unicorns after Osama!

Once you grant the legitimacy of surveillance aimed at detection rather than at gathering evidence of guilt, requiring a warrant to conduct it would be like requiring a warrant to ask people questions or to install surveillance cameras on city streets. Warrants are for situations where the police should not be allowed to do something (like search one's home) without particularized grounds for believing that there is illegal activity going on. That is too high a standard for surveillance designed to learn rather than to prove.

Gosh, I can't wait until Posner is Chief of Police. Posner to you: "I'm going to quarter these soldiers in your house. Not because I want toprove you're a drug dealer, but just because I want to learn whether or not you are a drug dealer. So it's constitutional!




4 Comments:

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