Richard Posner has completely lost his marbles

Judge Richard Posner, an icon on the bench and in law schools, seems to have lost it entirely. In an Op/Ed in the Wall Street Journal, he writes:

Monitoring, even when it takes the form of wiretapping or other electronic interceptions, need not be conducted under a warrant. The Fourth Amendment restricts warrants, as I have said, but warrantless searches are permissible as long as they are reasonable.

What horsepuckey! The Fourth Amendment says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,...

The right is a right to be free from ("unreasonable") searches. Not free from warrants. The Fourth Amendment says there should be no "unreasonable searches", warrants or not. Then it goes on to describe how warrants should issue:

... and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This describes constitutionally acceptable warrant procedure (and also parenthetically constrains what a "reasonable search" is by describing what is needed for a warrant).

These two provisions, taken together, have been pretty much universally understood to mean that warrantless searches are per se unconstitutional (with certain limited exceptions, not justified in my opinion, and few of which are really applicable to 'national intelligence' wiretaps, which I've described to some extent here). This understanding makes sense because of the juxtaposition of these two clauses in the Fourth Amendment; why would they bother to describe, in the context of rights, how a warrant should work if warrants were irrelevant or at the very least unnecessary?

Posner continues:

... 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.

But Congress, in its own wisdom in the wake of the Nixon era of surveillance abuses. decided that it is best if there's an active watchdog, not acting ex post facto, but making sure that the abuses don't happen in the first place (and FISA does have "draconian" penalties, criminal ones in fact, for those that violate the law).

And in fact, Congress structured the FISA court and the laws and procedures to mimic the Fourth Amendment procedures, but with a hat tip to the special needs and circumstances of national security matters, as even the In re: Sealed Case opinion seems to recognise. The In re: Sealed Case opinion, in deciding that the FISA court orders don't violate the Fourth Amendment, made quite a bit of the correspondence between traditional warrant procedures and those of the FISA court. If we were to eliminate judicial oversight, and the warrants (or, more accurately, FISA "court orders") based on "probable cause", we may well be straying far enough from the Fourth Amendment so that the surveillances might very well be held by a court to violate the Constitution.

Update:

Little did I know how far off his rocker Posner has gone. Glenn Greenwald has the gritty details here. From Glenn's post:

Court of Appeals Judge Richard Posner has become one of the leading advocates of drastically expanded federal police powers as a response to the terrorist threat. He advocates the creation of a domestic spy agency (an internal CIA/KGB/Stassi-type agency to monitor domestic activities); expanding the group of citizens subjected to warrantless eavesdropping to include even include "[i]nnocent people, such as unwitting neighbors of terrorists"; allowing warrantless eavesdropping even if it violates the law; and stripping federal courts of their ability to enforce legal limits on the President's national security powers.
...
Posner's core argument is that the threat of terrorism is so "very great" and "very novel" -- "sui generis" -- that the Constitution must be intepreted differently than it ever was before in order to deal with the threat (there is no transcript available -- all quotes are from my listening to the podcast). Posner repeatedly claims in the interview that "the Constitution is flexible" and he even says that it is a "loose garment, not shrink wrap." Thus, we "have to interpret the Constitution in a way to enable us to cope with unanticipated dangers."
...
[H]e then told Reynolds that he's "right" about the fact that he, Posner, has an elastic view of the Constitution -- that it is a "flexible" document. Posner then justified that view by essentially denegrating the Constitution as obsolete and useless in light of this grave new threat. The Constitution is nothing but "an 18th Century document," Posner complained, and "the notion that [the Founders] had the answers to 20th Cenutry problems . . . is, I think, wrong and dangerous."

Of course, the idea that we're facing new and unparalleled dangers is a load of horse apples. I don't know what happened to Posner's long-term memory, but it would seem that the Civil War, WWII, and Cold War held far greater dangers to the existence of the country, and we haven't had to trash the Constitution yet....

A Harpy Unto Herself

Ann Althouse pretends to be a "serious person" in a N.Y. Times Op/Ed. Reacting to the ACLU v. NSA lawsuit, she opines:

Laypeople consuming early news reports may well have thought, “What a courageous judge!” and “It’s a good thing someone finally said that the president is not above the law.” Look at that juicy quotation from Judge Taylor’s ruling: “There are no hereditary kings in America and no powers not created by the Constitution.”

But this is sheer sophistry. The potential for the president to abuse his power has nothing to do with kings and heredity....

Althouse forgets this pithy phrase: "L’État, c’est moi".

... (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution....

Of course not. He wouldn't. We're claiming that.

... He isn’t arguing that he’s above the law....

Well, outside of the fact that he says he's acting contrary to the requirements of the FISA law ... Hey, waiddaminnit: He's been issuing "signing statements" left and right as well!

... He’s making an aggressive argument about the scope of his power under the law.

Under what law? That's the nub of the problem, and one that Althouse wants so desperately to skirt.

It is a serious argument, and judges need to take it seriously....

And then dismiss it. With prejudice.

... If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?

Bit of circular reasoning there: He's legit because his lawyers tell him he's legit? Bet that works dandy for the mob, ya think? Why should his view prevail, Althouse asks. Because he has the army? I suggested this in ConLaw class once, and Prof. Choper said that was a topic for a different class (PolySci perhaps? World History?); in ConLaw, we are supposed to decide things in the usual fashion. But despite Althouse's radicalism about who gets to decide in the end on matters of law here, she goes on to exalt our traditional notions of what role the judiciary should play:

This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge’s word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law.

What a steaming pile of ... arrant nonsense. There's no Constitutional requirement that judges "restrict[] them[selves] to resolving concrete controversies and requir[ing] them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law". She just made that up (but there is a Constitutional requirement that the president "take care that the laws be faithfully executed"). If we decided tomorrow to abolish stare decisis, there would be no Constitutional prohibition on such. Our notion of "controversies" is also pliable; certainly not laid out in concrete in the Constitution.

Althouse thinks that judges can do what they do as long as they behave themselves. Their job is not a responsibility but a privilege. But Althouse doesn't show that Taylor violated any such notions of 'good behaviour'. Althouse simply disagrees with her decision.

This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury.

Althouse carefully omits the fact that the gummint has gone out of their way to prevent anyone from demonstrating standing to complain about Dubya's spying program. They have invoked the "state secret" privilege to say they won't even admit who they're spying on. I wonder if Althouse approves of this privilege being invoked to deny poor Khaled el-Masri his day in court as well. "Rendition"? Well, Khaled, sorry it happened to you and all, but in our Great War On Terra, a few eggs are going to have to be cracked, and we can't even admit this simple fact and pay up when we've screwed the pooch because that would mean the Terra-ists are winning....

Althouse finishes with this fine flourish:

If the judge’s own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates.

There’s irony for you.

There's stoopidity for you. Althouse's 'logic' here is that if (assuming arguendo here) Taylor's opinion is wrong (or even just poorly stated) on certain specific issues, then, ipso facto, Dubya's views must all be right.

"A fundamentally fair trial"

The Washington Post reports on the maladministration efforts to side-step the Hamdan decision and reinstitute the military commissions, with even more expansive provisions, here.

Amongst the other provisions, we have (from the article):

They objected in particular to the provision allowing defendants to be tried in absentia, said the official, who spoke on the condition of anonymity because he was not authorized to describe the deliberations. Another source in contact with top military lawyers said, "Their initial impression is that the draft was unacceptable and sloppy." The source added that "it did not have enough due-process rights" and could further tarnish America's image.

The military lawyers nonetheless supported extending the jurisdiction of the commissions to cover those accused of joining or associating with terrorist groups engaged in anti-U.S. hostilities, and of committing or aiding hostile acts by such groups, whether or not they are part of al-Qaeda, two U.S. officials said.

That language gives the commissions broader reach than anticipated in a November 2001 executive order from President Bush that focused only on members of al-Qaeda, those who commit international terrorist acts and those who harbor such individuals.

But here's where they're coming from:

But Kris Kobach, a senior Justice Department lawyer in Bush's first term who now teaches at the University of Missouri at Kansas City, said he believes that the draft strikes an appropriate balance between "a fundamentally fair trial" and "the ability to protect the effectiveness of U.S. military and intelligence assets."

Pardon me if I missed it in law school, but where is the provision in the Bill of Rights that specifices that one is entitled to a "fundamentally fair trial" except when that gets in the way of military expediency and efficiency?

Then we have the further problem that there's little evidence to show "the effectiveness of U.S. military and intelligence assets" in the first place. What are we getting for our money ... and our liberties?

Then there's this gem:

Administration officials have said that the exceptional trial procedures are warranted because the fight against terrorism requires heavy reliance on classified information or on evidence obtained from a defendant's collaborators, which cannot be shared with the accused. The draft legislation cites the goal of ensuring fair treatment without unduly diverting military personnel from wartime assignments to present evidence in trials.

"We doan need no steenkin' evidence...."

Update: Should have included this choice stuff too:

Under the proposed procedures, defendants would lack rights to confront accusers, exclude hearsay accusations, or bar evidence obtained through rough or coercive interrogations. They would not be guaranteed a public or speedy trial and would lack the right to choose their military counsel, who in turn would not be guaranteed equal access to evidence held by prosecutors.

Detainees would also not be guaranteed the right to be present at their own trials, if their absence is deemed necessary to protect national security or individuals.

Pretty heady stuff ... if your name is Torquemada or Stalin.

Update 2: Gonzales gets more specific on what he wants:

The Bush administration wants a new system for trying terror suspects to let prosecutors withhold classified evidence from the accused, Attorney General Alberto Gonzales said Wednesday, holding to a hard line on detainee policy despite concerns by senators and military lawyers.

"We must not share with captured terrorists the highly sensitive intelligence that may be relevant to military commission proceedings," Gonzales told the Senate Armed Services Committee.

Gonzales said detainee legislation also should permit hearsay and coerced testimony, if deemed "reliable" by a judge. These approaches are not permitted under the Uniform Code of Military Justice, or UCMJ, which is used for military courts-martial.

So if we manage to "coerce" some story out of someone that implicates a detainee, we can use it, and we don't even have to tell the detainee we did so....

"The new rules are that there are no rules..."