A Stitch in Haste

Judge Richard Posner has yet again stepped up to the mic to defend the view that the War on Terror requires absolute deference by judges:

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. 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.

This is, of course, utter nonsense.

First off, Posner's "reasonableness always trumps warrants" view of the Fourth Amendment runs counter to Supreme Court precedent, especially Katz v. U.S., 389 U.S. 347 (1967), as well legal and popular consensus, and the plain text of the document (why mention warrants at all if they were not to be considered, whenever at all possible, a condition precedent to a search, whether reasonable or not?). There is also, it apparently needs to be reiterated, nothing in the text of the Fourth Amendment limiting it to "criminal matters."

But far more disturbing is Posner's irrational confidence in (hypothetical) "extra-judicial" checks on abuse of warrantless eavesdropping, and indeed on warrantless searches in general. A man who has seen, and made, so much law during his career ought to have a better understanding of the political process and its shortcomings, and of the limitless danger of relying solely on the good faith and ethical steadfastness of politicians, bureaucrats, regulators, generals and spies.

We shouldn't be so naive. We don't need to be so naive. So why are we becoming so naive?

"Al Qaeda" is simply not a good enough answer.

More thoughts at Balkinization.