As a judge I cannot comment on the correctness of [the decision that the NSA wiretapping program is illegal]. But I can remark on the strangeness of confiding so momentous an issue of national security to a randomly selected member of the federal judiciary's corps of almost 700 district judges, subject to review by appellate and Supreme Court judges also not chosen for their knowledge of national security.
It is not so strange. All momentous issues regarding statutory and Constitutional interpretation start at a trial court. And for momentous questions is does not matter who is randomly selected because the case will be appealed. So the initial comment about a randomly selected Judge is irrelevant bullshit.
And if the process of having neutral individuals, educated, but not ideologically committed to a partisan positions determine the law is strange in the national security area, the idea of the judiciary itself must be strange to Posner. Judges all over american making decisions about environmental impacts anticompetitive conduct, energy policy, psychology, sociology, and many other diciplines one might think expert study would be useful. (A problem with Posner is that he considers himself an expert in all fields. He thinks himself an economist, but doesn't seem to understand such basic concepts as transaction costs or market failures. (See Chicago Bd. of Realtors, Inc. v. Chicago (7th Cir. 1987) 819 F.2d 732, 742.) Perhaps he should quit the business?)
It is the judiciary's inexpert status that places the burden on the parties to present convincing evidence to support their positions. Judge Posner already knows that spying on Americans and locking up foreigners without judicial oversight is the right answer; no evidence presented in court needed.
And this dis of the judiciary coming from a Judge who writes a book on national security? Maybe he is just upset they he won't get to decide the case. Instead, he thinks the experts in national security in the CIA and White House should decide what liberties we have, with oversight from Republicans in congress. We must be in different worlds because, to me, that statement appears absurd on its face.
Perhaps I haven't had my brain damaged by Sept. 11, 2001 -- as it appears many former libertarians have -- but the danger from being killed by a thug in East Oakland or a drunk on the 880 seems a lot more dangerous than terrorism: 45,000 killed per year in car crashes; 100+ murders in 2006 for Oakland. Terrorists: no American deaths in the past 5 years, and deaths in California? Not in my lifetime. And the balancing of what is a reasonable balance between security and public danger is something that trial Judges are as expert at as anyone, repeatedly deciding when it is reasonable to search or arrest someone.
And as Marty Lederman at Balkinization points out, Posner's statement that "We are boxed in by our revered 18th-century Constitution as interpreted by the Supreme Court," made in reference to Hamdan and ACLU v. NSA is stange indeed because both decisions were most strongly supported on the ground that the Executive's actions violated a statute passed by a Congress and President in the last century, not the Constitution. And anyone who thinks the threat of the Soviet Union and nuclear annihilation is not far more dangerous than airplanes... We can just stop talking.
So what is Plan Posner? Not actually imprisoning terrorists,
Terrorists are difficult to deter and locking them up has only a limited preventive effect because the supply of terrorists is virtually unlimited. Fortunately, if a terrorist plot is detected it will usually be possible to neutralize the plotters without prosecuting them.
And I heard that we were killing them all in Iraq so they wouldn't come here. What a disappointment. Instead, he wants to let them go and keep watch without the Constitution to hold us back:
Monitoring, even when it takes the form of wiretapping or other electronic interceptions, need not be conducted under a warrant.
How to prevent abuses?
The potential abuses of warrantless surveillance can be minimized, without judicial intervention, by rules limiting the use of intercepted communications to national security, requiring that the names of persons whose communications are intercepted (and the reasons for and results of the interception) be turned over to executive and congressional watchdog committees, and imposing draconian penalties on officials who violate civil liberties in conducting surveillance.
With the less than stringent Congressional oversight and a White House that does not cooperate with DOJ investigations, there is no restraint on abuse.
Now, I can understand wanting to have a lower standard of proof for terrorist related searches, I can understand a lower standard for holding individuals who are believed to not just be ordinary criminals, but one who wish to kill large numbers of people. However, changing the standard necessary to search, listen, or detain someone does not mean that the task of ensuring compliance should be striped from an independent body and given to political appointees and partisan Congresspersons.
There may be creative judicial, constitutional solutions to addressing the unique threat of terrorism, but the current administration has not attempted to make serious proposals creating such a compromise (such as the passage of FISA itself). Instead, the administration simply asserts there is no constraints on its power.
You would think a free marketer like Posner would understand the dangers of monopoly, the pressures of public-choice theory, and the benefits of competition. The founding fathers did and they created three branches of government that could compete for power and expose abuses. Lets hope we don't kill off this 18th century wisdom because too many people now wet themselves every time someone is brown and on a plane.