Tuesday, August 22, 2006

Judge Posner in WSJ on surveillance decision and counterterrorism policy

Judge Posner writes today in the Wall Street Journal, Tuesday, August 22, 2006, on the weirdness of how we approach counterterrorism policy, here:

As a judge I cannot comment on the correctness of her decision. 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.

A further strangeness is that the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review (which hears appeals from FISC) have been bypassed, with regard to adjudicating the legality of the NSA program, in favor of the federal district court in Detroit. The reason is that the jurisdiction of those courts is limited to foreign intelligence surveillance warrants, and the NSA program under attack involves warrantless surveillance.....

Five years after the 9/11 attacks, the institutional structure of U.S. counterterrorism is in disarray. The Department of Homeland Security remains a work in progress -- slow and painful progress -- and likewise for the restructuring of the intelligence community decreed by Congress in the Intelligence Reform and Terrorism Prevention Act of 2004. And now, in the wake of Hamdan and the Detroit case, we learn that we do not have a coherent judicial dimension to our efforts to combat terrorism. (One reason may be that there is no official with overall responsibility for counterterrorism policy.) Other than the judges assigned to the two foreign intelligence courts, federal judges do not have security clearances and, more to the point, have no expertise in national security matters. Moreover, the criminal justice system is designed for dealing with ordinary crimes, not today's global terrorism, as is shown by the rules, for example, that entitle a person who is arrested to a prompt probable-cause hearing before a judge and require that criminal trials be open to the public....

Marty Lederman responds at Balkinization, here. Likewise Brian Tamanaha, here.