Tuesday, August 22, 2006
Today's Wall Street Journal has a brief but pithy column by Judge Posner (available here) on the recent decision by Judge Anna Diggs Taylor (available here) finding the National Security Administration's program of warrantless wiretaps to be unconstitutional.
Judge Posner speaks eloquently for himself. I simply want to frame the question that he poses in a slightly different manner. Antiterroism presents new and vexing challenges for law enforcement officials. Society would be better served, for instance, by deterring terrorists from committing their heinous crimes than by finding, prosecuting, and punishing them after they have done so. This would, of course, be true of all crimes but, in view of the horror of the contemplated crimes of terrorists, is particularly true of crimes designed to sow terror. But this emphasis on prior knowledge of terrorist intentions runs up against the strong interest that we all have in living our lives free from excessive government interference. We typically balance legitimate concerns about freedom from that interference and social desire to deter wrongful acts by requiring law enforcement officials to seek a warrant for interference on the basis of probable cause that the object of the warrant will commit a crime. But it may be particularly difficult to bring "probable cause" and seeking warrants to bear on terrorists. And, as Judge Posner notes, the Fourth Amendment forbids general warrants that might serve to allow the broad interference in individual liberty that the NSA program trod close to or on.
That being so, Judge Posner proposes an alternative -- an ex post method of regulating the NSA and similar agencies in their quest to discover terrorist plans and persons. He suggests an executive or legislative branch oversight committee to which the NSA (or its equivalent) would report periodcially. The reports would document who had been surveilled, when, for how long, what was discovered, and what "reasonable" ground or grounds existed for that surveillance. The oversight committee would have the power to impose large, significant fines on officials who had abused this discretion.
I'm not sure whether Judge Posner's oversight committee with its ex post punishment powers would work. I can think of some reasons that the committee might not serve its contemplated function well. It might, for example, be deeply influenced by political considerations in a way that judges on the Foreign Intelligence Surveillance Court are not. And I wonder about the effectiveness of fining individuals for the acts of surveillance that they authorized. Will, as my colleague Andy Leipold asks, the agencies indemnify them against that liability so that they can persuade talented people to lead the agency? Nor am I aware of any changes in the ex ante method of seeking and approving warrants that we might consider and whether those changes are practicable and more or less efficient than the proposed oversight committee. Is it really so difficult and time-consuming to get a broad warrant from the FISC?
But, as always, Judge Posner has given us clear cause for thinking. Incidentally, he and Professor Gary Becker discuss some of these same matters at the Becker-Posner Blog, available here.