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June 22, 2006


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Kimball Corson

The problem with deference, thumbs and abdication is we deal with an unchecked Executive Branch and a judicial system in this context that is too preoccupied with precedent and static results. Muff it the first time and it can be a mess forever under the doctrine of stare decisis. However, there is no necessary reason that with good competent lawyering, judges cannot get on top of complex security issues, just as they get on top of many other complicated issues. We do need however a new set of procedural rules that afford the judiciary involved to make progressive decisions by a set of first, second, third order and ever better approximations to a last decision, perhaps giving the government some lessening leeway in the meantime. But a total rollover by the judiciary, especially with a Congress like this one, results in a wholly unchecked major branch of government, where only the press and leaks are left to afford enfeebled protection of civil rights. The immediacies of war clearly compromise on the exercise of sound judgment, but what else do we have to get sound deliberated results? Certainly not wartime politicians.

Ergo, my contention we need a new set of procedural rules for FISA or FISA-like courts to allow them to make ever better successive decisions and, to got with that, a new view of the role of precedent and stare decisis. The Executive branch cannot be turned loose and unfettered too long because it gets too much wrong and makes too many mistakes, a point Judge/Professor/author extraordinar Posner overlooks or gives too little weight. A dynamic system like that proposed here might serve us all best, if we can figure one out. A kernel of what I am taking about is buried in the notion of a temporary restraining order, a preliminary injunction and a permanent injunction, but not in the context of arriving not at a single decision in the case, but a multiple set of ever improved and better informed decisions. Again, a dynamic system, if you will, that can better deal with dynamic problems and afford independent review and oversight, elements now too sadly lacking.

Kimball Corson

I am amused that, if you will, the chilling effect of Constitutional rights can compromise otherwise legitimate efforts to wage war. That may be true in some slight way, but are we to suspend the Bill of Rights during wartime or at least the Fourth Amendment and let the Executive Branch run even more wildly free and unchecked? I don't think that is a sound approach. Checks and balances are always needed to get good results, even in war. The idiocy of each of us requires the check of other of us and good decisions can then emerge. We each overlook too much that more of us can correct. If rights are to be hopefully only temporarily compromised, let it be by a system of checks and balances, not by a Chief Executive looking to God for counsel and to expand his role in history.

Kimball Corson

Alas, now we learn much of our financial data and transactions have been being scrutinized in secret as well. Wouldn't IRS and the FBI love to get their hands on that info. What is next? Cameras in bedrooms to pickup and document pillow talk?


The balance between civil rights and national security, as expressed in government actions, varies with the intensity of the feeling of national danger that prevails at the time the actions are taken: the higher the sense of danger, the more compelling is the concern for security.

But it seems to me that it is precisely during times that the sense of danger (or, in one syllable, fear) is efficaciously driving government policies, that lawyers should be speaking of the importance of the vast number of necessary social experiences in which fear of disaster has a very minor part, and of the proper conditions for fostering and protecting those experiences, at least in the ways that our tradition of balanced complexity has sought to do.

I detect no difference between Posner and Stone in the depth of their antipathy for wacky imams nor the pitilessness with which they would extirpate the enemies of America.

But I do wonder at the effort by Judge Posner to find a way that the Law could properly be employed to help in furthering (or be disabled from interfering with)national safety projects which, however necessary they may be felt to be in these days, should not become so dominant that in the next epoch, when dangers have lessened, they will still be around, fully funded, well-staffed nuisances. Or worse.

It is not as if calls to protect our way of life ever come up short of recruits. It is at least partly for that reason that I, for one, feel better when prominent lawyers incur opprobrium for criticizing such projects.

Kimball Corson

As bcowan suggests, the ememy does not have to actually attack us or actually injure us, it only has to terrorize us and cause us to fear and we then do all sorts of bad things to ourselves and our rights. So who or what is the real enemy?

Kimball Corson

Another alas. In addition to learning that AT&T has secured rooms at its central email hub requiring retinal and fingerprint scans for government agents to scan and read our emails, AT&T has now instituted a new privacy policy this week stating that the Company, not customers, owns customers' private data.

This invasion of our civil rights is getting seriously out of hand. Professors Stone and Posner should both check into and address this issue. I urge a strong boycott of AT&T by all customers. This is simply outrageous.

Kimball Corson

More. Also from this morning's NY Times.

On Thursday, NewScientist.com reported that the N.S.A. was financing research into "the mass harvesting of information that people post about themselves on social networks" like MySpace.

"The resulting data, the site reported, could be combined with 'details such as banking, retail and property records, allowing the N.S.A. to build extensive, all-embracing personal profiles of individuals.'"

Again. This is getting out of hand. And what else is holed up in the government's woodwork that we don't know about?


The Supreme Court held years ago that a person has no reasonable expectation of privacy regarding his or her telephone records (numbers dialed and length of calls) as opposed to the contents of the calls. That's the information that one of the NSA programs sought, if what I have read in the press is correct.

Someone who posts information about him or herself on the web invites the public to peruse the information and make such use of it as they will. In fact, isn't that the whole purpose of the poster? And so why is the government's using that self-disclosed information in any worse position than anyone else?

Kimball Corson

Your correct on the pieces you single out, but when those get packaged with other information that is private, the aggregate of the disclosures becomes troubling and subject to much misuse as a file kept on each of us. We should not be spying on ourselves instead of targeting on the Muslim community. The Pennsyvannia Dutch, for example, are not high on terrorist lists.


Kimball--I agree that the aggregation of information is troubling. I have long had a somewhat paranoid fear that the various levels of government would assemble all the information it legitimately has about us in one vast database. However, based on my years of dealing with various branches of the government, it is generally so inept that I cannot realistically see it doing this in any meaningful way.

And I also agree that the U.S. should be targeting those who have links to jihadis (not the entire Muslim community) and certainly not the entire population. See the discussion under one of the other posts. It is my understanding that that's what the NSA is trying to do and I have no problem with it.

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