Marty Lederman on Judge Posner's Op-ed

December 21, 2005

In a Washington Post op-ed published today, Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit argues posits (as ACSBlog and numerous others have recently) that the recently disclosed domestic intelligence initiative involves, in one form or another, data mining - as Judge Posner puts it, "[t]he collection, mainly through electronic means, of vast amounts of personal data." He goes on to argue that:

The Foreign Intelligence Surveillance Act makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities. That is too restrictive. Innocent people, such as unwitting neighbors of terrorists, may, without knowing it, have valuable counterterrorist information. Collecting such information is of a piece with data-mining projects such as Able Danger.
The goal of national security intelligence is to prevent a terrorist attack, not just punish the attacker after it occurs, and the information that enables the detection of an impending attack may be scattered around the world in tiny bits. A much wider, finer-meshed net must be cast than when investigating a specific crime. Many of the relevant bits may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security.

On Balkinization, Marty Lederman responds:

But whether and to what extent Posner is right that data mining of U.S. persons should be legal is precisely the policy debate that ought to have had occurred in Congress in 2001 when the Administration felt the need to start down that road. Instead, this Administration -- knowing that even a super-compliant Congress after 9/11 would be wary of going as far as Posner proposes -- simply decided to break the law and do it anyway, citing a Commander-in-Chief override.
What's remarkable about Posner's Op-Ed is that his whole point is that the FISA law on this presently is (in his view) woefully inadequate to the task. He never even mentions the serious implication of this point, namely, that if he is right that FISA currently prohibits this -- and he is right -- then the Administration's data mining for the past four years has been a violation of criminal law. (No specious suggestions from Posner, who knows better, that this was authorized by the AUMF: He's forthright that the law needs to be amended.)
Posner may be right that current law is too restrictive. Congress should have that debate. But isn't it troubling that an esteemed federal judge seems so indifferent to the fact that, in the meantime -- before the Nation and the Congress have had the opportunity to debate Posner's proposal -- the Nation's Chief Executive is systematically authorizing criminal felonies?
This is the way Posner characterizes what's been happening: "The Defense Department is rushing to fill [the] gaps." I suppose that's one way of putting it. (I can imagine lawyers for criminal defendants with appeals to Posner's court: "Your honor, as you've written, this criminal restriction is very unwise and needs amending. My client was merely rushing to fill the statutory gap.")
Here's the most chilling line in Posner's column, taking euphemism to a new level: "It is no surprise that gaps in domestic intelligence are being filled by ad hoc initiatives." That's Posner's kinder, gentler way of saying "It is no surprise that current federal laws, which unwisely criminalize this conduct, are being circumvented by the President's authorization to commit felonies." (emphasis in original)