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?
... 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.
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.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....
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."