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September 22, 2006


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Suppose we used a satellite to take infra-red pictures of every house in the United States and fed the results to computers that analyzed the data and pinpointed with substantial probability those that housed sufficient heat lamps to grow a commercial sized crop of illegal drugs, would that constitute probable cause to search those locations? I would like to think you'd find that the satellite pictures were themselves an illegal search and call the effort to use them as the basis for warrants bootstrapping.

Kimball Corson

A major struggle is afoot here between Profs Stone and Posner on whether the Fourth Amendment can be bent far enough to let the government get some form of look at private information that might contain what the government seeks before, as opposed to after, the protections to be afforded by that Amendment kick in. This is a core issue. Once the government gets to look at my thoughts without some notion of good cause applying first, then it is in a position to use that information for improper purposes and there is no really effective check on the government doing so, as Posner makes clear. The FISA structure was there to protect us and, contrary to law, it was ignored. Government cannot be trusted.

An algorithmic approach, which Stone suggests, might actually work against privacy concerns in some contexts. Say I have a sister in Paris whom I email explaining "I met a wonderful ARAB woman in SYRIA who is a real BOMB and that her Parents live in SAUDIA ARABIA but they are not RADICAL ISLAMISTS, nor part of any TERRORIST CELL and they never knew the BIN LAUDEN family." I cannot for a New York minute believe my full email would not be read almost instantly or that, if not, someone would not be knocking on my door late at night, asking me to come downtown. These prospects are much more probable than if I really were a terrorist confirming the time and place of a cell meeting by an email to a co-terrorist using the name of Hank which reads, "Hank, the meeting is at 7:00 pm at 415 78th Street. Se ya there." Algorithms are problematic.

Posner's approach to the Fourth Amendment is insidious. As he sees it -- realistically he would say-- we have already given up our rights by availing ourselves of new and porous technology. We don't care about our rights. Governments don't respect boundaries and walls, and Congress cannot conduct decent oversight. It is a bad and depressing mix. I for one don't want snoops in my life because I believe that is but a short step away from a Fourth Reich. Too many people already, including advertisers and corporations (e.g., ExxonMoble on global warming), are out to control my thinking and doings. The Government should not be among them any more than absolutely necessary because of the fearsome power of coercion it wields. The Bill of Rights has the predicate assumption, from its authors good sense of history, that the people cannot trust their government. Posner takes us down a primrose path from which I fear there is no return, Even his current arguments suggest that there is no way back. This is a bad business we are inflicting on ourselves if we are to believe him..

I think some form of look at information before real protections kick in may be necessary to fight terrorism, but there needs to be independent, fair-minded, conscientious and well empowered oversight by men of good judgment to then protect us. But alas, that is what I thought we had with the FISA structure that was ignored. Perhaps that structure could be retooled to better serve all interests involved here and have it given some real teeth so heads could be rolled and criminal charges assuredly brought for those in government who don’t play be the rules.

Frederick Hamilton

This debate between Stone and Posner is very enlightening. Both are discussing the need to try to protect our civil rights within the context of terrorists engaging in horrible unthinkable activity.

In America we desire as Kimball states to play by the rules. Unfortunately our adversaries have no rules they have to play by. Ergo, there needs to be some way to stay on top of and ahead of the terrorists by relaxing our rules enough to do just that but not relaxing them so much as to allow the government to take our freedom and liberty away.

It can be done. It will require both sides of the argument to be willing to sit down and come to an agreement. It appears McCain, Graham, and Warner were able to reach an agreement with the administration regarding military tribunals. So, it can be done. Hopefully it will be able to be done with NSA, CIA, TSP, et al.


I am pleased to learn that Messrs. Posner and Stone are way ahead of me in the discussion of algorithmic interception of communication. In this regard, however, technology giveth and technology taketh away.

On the plus side, it is indeed possible to develop highly complex algorithms that can detect suspicious activity and filter out innocent activity. The example offered by Mr.Corson of an innocent communication appearing at first glance to be suspicious could in fact be screened out. Good filtering algorithms would take into account a great deal more information than a single paragraph. I would expect such algorithms to amass gigantic databases of all the communications emanating from any suspicious source. Thus, while the example offered by Mr. Corson would likely trigger a low-level algorithm, it would surely be rejected at some higher level of algorithmic evaluation.

So the good news is that a well-designed set of algorithms really could filter out all but seriously suspicious activity.

Here's more good news: technology would also make it possible to provide Congress with detailed statistics on the success of the program. That is, it would be an easy matter to provide Congress with precise statistical summaries of all monitoring activity. The number of communications that passed up to higher levels of scrutiny could be presented. Above all, every single communication that gets flagged for human examination can be reported along with the basis for such flagging. The report might read like this:

"September 22, 2007: presented for review the case history of caller ID#43546332256, based on the following communications intercepts:

1. September 22, 2007: [transcript]
2. September 19, 2007: [transcript]
3. September 16, 2007: [transcript]"

and so on.

Thorough reporting of this nature permits more diligent oversight. (Obviously, such data would have to remain secret because of privacy concerns as well as the need to keep the operations of the algorithms a secret.)

However, technology also taketh away. The most serious problem is presented by Skype, which offers absolutely secure voice over internet communications. The security is double-barreled: not only are the conversations uncrackable, but also the number of people using Skype makes it impossible to focus on users as potential suspects.

It gets worse. Robust encryption technology is now readily available to the consumer. Anybody can encrypt anything they want in a manner uncrackable by even the NSA. Government intercepts of communications cannot possibly catch the knowledgeable terrorist. Only amateurs can be caught by intercepts. Which makes the entire effort a waste of time and money. Why should we compromise the Bill of Rights to no benefit?

Lastly, I do not share Mr. Hamilton's confidence in the ability of our government to hammer out useful compromises. The agreement between the Republican mavericks and the White House still trashes habeus corpus. While the final wording is unfinished, I would be surprised if the elimination of habeus corpus would survive judicial review.


Kimball´s assertion that Posner puts us into a situation from which there is no return deserves some more consideration. Although in all probability, everyone who upholds these recourses as necessary to the war on terror would argue that these are temporary tools...I would argue that we are permanantly opening ourselves up to the use of these tools in increasingly diverse situations in the future.

It´s a common understanding that emergency powers breed emergencies. The first and foremost of these examples is the war on terror. This war has always been characterized as a war that will last an indeterminate amount of time. This is a big problem for programs such as eavesdropping and e-mail monitoring. In fact, we don´t really know what constitutes terrorism. The longer these things go on, the more possibilities there are for abuse, expansion, and unfortunately, acceptance by the generally gullible public.

Next, the Rep.´s (the dem´s too, but the right has a historical proclivity toward calling things "wars" and "crises"...) are eventually gonna come up with something new as the threat from terrorism becomes less and less potent. What it will be, no one knows, but there is NO DOUBT that the government is going to come up with something to justify it´s abuses, and point to the successes of such in order to get reelected. And, there will be a few more things along the way. It´s going to happen, and so long as there is a substantial amount of the public to be lead along on this tyrranical joy-ride, then things will continue and continue, until the U.S. finds itself in a situation that Europe found itself in 60 years ago. Take, Take, Take, Take...until the vast majority finally decide that it´s time to stop. Unfortunately, by then, it´s usually too late.

Kimball Corson

Good and useful post, you last, Eras

Kimball Corson

If we are really interested in eliminating terrorists and their threat to us, we need to consider the causes of terrorism too, not just the narrow, myopic, defensive measures we can take, like snooping in everyone's mail and bank records. While White House pronouncements on the fifth anniversary of 9/11 congratulated the President on his progress in the war on terrorism and in dismantling al Queda, a National Intelligence Estimate has just been leaked, according to the New York Times, that was prepared in April, stating that in the unanimous opinion of all 16 United States spy and intelligence agencies, terrorism was increased markedly by our invasion of Iraq. Other factors increasing terrorism, as leaked in regard to earlier draft (and possibly the present draft) of the Estimate, include the indefinite detention of prisoners at Guantánamo Bay and the Abu Ghraib prison abuse scandal. Perhaps now we can add the new congressional compromise just reached for legislation soon to be enacted by Congress. Can’t we get anything right? In substantial measure, we are causing the terrorism against us by our own thoughtless stupidities. Why don’t we also consider ways, by changes in our policies, of reducing the terrorist threat against us, instead of focusing only on ways of tearing up the Bill of Rights as we try to “protect ourselves.”

Kimball Corson

Ditto, curtisstrong.


Elsewhere I used the phrase "swatting flies" to describe the wasted energy of going after individual terrorists. You can win defensive actions against terrorists by uncovering their plots, but to take the offensive against them, you must dry up the sources of political energy on which they thrive. That means fixing the messes we have made in Iraq and Palestine.

I heartily agree with the reservations expressed about the open-ended nature of the "war on terror". I think we should abandon that phrase entirely and instead think of the efforts to foil terrorism as an ongoing, steady-state situation. As such, we cannot justify emergency measures, because our current situation is not an emergency (a limited period of extreme danger). It is a chronic condition and all of our deliberations must be built on the assumptions that any new laws passed are NOT temporary but are likely to remain on the books indefinitely. I think that would give politicians some reason to pause and think.

Lastly, we must remember the fundamental truth that terrorists seek to terrorize. All this talk of war and emergency plays right into their hands. Our most important task is to take the threat seriously without getting upset by it, to remain calm and deliberate. The terrorists have succeeded in terrorizing American -- and that is their greatest victory.


All criminal procedural protections ultimately devolve to the issue of reasonableness. We don't want the government going through our neighborhoods with infrared lamps to look for illegal drugs, but we are largely indifferent to a highway roadblock seeking an escaped murderer. (Indeed, exactly that happened in Utah a few years ago, and every car was searched, at gunpoint, for the criminal stowaways.) This is the whole basis for the distinction of Terry stops and full blown arrests and searches. This is also the basis (though it's also based in the concept of exigency and perishability) that allows greater rights of searches for automobiles than people's homes.

The problem with the analogies to drugs and pornography and other areas where privacy protections are fairly robust is that the stakes are lower for society in all of those instances. We're willing to sacrifice enforcement because the groups affected by the increased searches are greater, embarrassing but legal conduct would be detected, and comparatively minor law violations would be detected, where we have already de facto permitted far less than complete enforcement. One more obscene picture and one more crack rock on the streets are pretty minor in their impact. But when the issue is terrorism, the stakes are heightened. Mass murder on a grand scale is the consequence of insufficient enforcement. And thus, along the lines urged by Akil Amar, it's appropriate and ultimately reasonable for Fourth Amendment purposes to permit a greater purview of police action in those instances than in the case of minor crimes. (Judge Posner suggested this analogously himself in urging a "knowledge" standard for aiding and abetting in certain serious cases, such as knowledgeable though not intentional assistance in the murder of a correction officer, in contrast to the knowledgeable sale of, say, a cheap hotel room to a prostitute.)

As for privacy, the touchstone of protection is ultimately (and textually) the Fourth Amendment protection against unreasonable searches. In wartime, the whole concept of what is reasonable or not has long favored more extensive government freedom of action for at least two reasons. First, we rightly exclude the enemy from all but the most minimal constitutional protections because the enemy is outside the community the Constitution is designed to protect from government overreach. And second because the consequences of failure in wartime are severe, including mass death and the defeat of the entire constitutional order.

The idea of signals intelligence across the board should be permitted, both for international and intranational communications. There are so many such communications that anyone guilty of only minor offenses would have little to worry about. He could hide in the crowd. If phrases like "let's sell crack cocaine at 123 Main Street at 3:00 p.m." were detected, I think there is little reason to be concerned as well. After all, what important interest other than the privacy interests of criminal conspiracies would be detected thereby. As in the case of the extensive personal information disclosed to the IRS, most of us could safely hide in the crowd. But when, in a flurry of "Allahu Akbars" and "down with America" and other phrases uttered in Urdu or Arabic or broken English, something can be discerned about a terrorist activity, why should I or any other non-terrorist American be concerned that my own conversations may be stored amidst gazillions of other innocent conversations that will not set off any alarms and never ever be reviewed by anyone, any more than the so-called "Permanent Record" of my elementary school years, which surely resides on some mainframe somewhere, forever (and unsurprisingly) testifying that I was a bit rambunctious in the fifth grade.


Roach, I am troubled by one aspect of this discussion that comes through quite clearly in your post: the notion that we should twiddle with the Constitution where it does not serve our immediate needs. I agree with many of your points, but I balk at simply implementing them directly; down that path lies the erosion of our Constitution. If we're serious about these changes, we should implement them as Constitutional amendments. People seem to regard Constitutional amendments as out of bounds, yet I think that they are the best and clearest way to resolve some of these difficult issues. A wise fellow once asked "What is Absolute Truth?" and answered "A five to four decision in the Supreme Court". By the same token, a bill that squeaks through Congress on a 51% majority vote just doesn't command a lot of respect. But a Constitutional amendment would surely give us all greater reason for confidence -- especially because such an amendment would represent a less extreme, more middle-of-the-road solution.

Kimball Corson

And we are inflicting this great damage on our rights, institutions, ourselves and our purses by actually inciting terrorism through the means I identify above, for what? . . . to bring democracy to religiously mandated theocracies in the world of Islam? Are we daft or what? Or was that just the stupid fall back position adopted when we failed to succeed under the Wolfowitz plan to gain puppeteer control over Iraqi oil production so as to increase it in order to break OPEC’s back and drop the price of oil worldwide, without injuring Iraqi revenues.

Our failures exist at so many levels and we seem unable to fix anything very well, even when the solutions are right under our noses. Our views of too much are too small.

Kimball Corson

Maybe this is a failure of our higher educational system in America where we are trained to think narrowly and analytically, instead of also expansively and connectively. We have too many blind sides, an indication that what I suggest here might be true.

Kimball Corson

Why belaboredly rationalize comprimises to our Constitutional rights in order to swat flies in our self defense, as Eras puts it, when we can change some basic policies and address root causes to be largely done with the problem of terrorism. The idea recently voiced by the Administration that we need "to stay the course in Iraq" and "win the war there" is pure nearsighted twirpism, with an overlay of stubbornness thrown in. Bush's precious legacy is in the trash can and there is no saving it by doing more of what we are doing. It just prolongs the duration of the mess.


First, Kimball, I notice you want to change the subject to Iraq. But we're discussing fundamentally the war with al Qaeda, where clandestine cells threaten our safety here at home. Liberals love to say that they were on board with the operations in Afghanistan and against al Qaeda but draw a line with Iraq, but their frequent back-peddling on the necessary activities to take on al Qaeda suggests they're thorough-going pacifists unfit to govern. Bush may be incompetent, unimaginitive, and overly involved with a utopian scheme in Iraq. But it can't be said he's too solicitous of civil liberties at home in a way that will threaten us (with the notable and glaring exception of immigration).

Erasmussimo, we don't need an amendment. The Constitution already has a reasonableness standard built in to the Fourth Amendment. It also permits through statute the suspension of Habeas Corpus and the declaration of war, with all of the attendent powers of war vis a vis foreigners and foreign agents, e.g., the right to put foreign nationals of enemy nations in concentration camps, the power to try foreign enemies (legal or otherwise) for war crimes, the power to hold enemy combatants for the duration of war, etc.

So, there is no need for an amendment. The courts are simply over-reaching here, and it would be a good thing if Bush simply ignored their ultra vires pronouncements in Hamdi, Rasul, and Hamdan. They are all simply ridiculous, and Hamdan in particular is ridiculous insofar as it ignores a Congressional exclusion of federal court jurisdiction. The Detainee Treatment Act stated ""[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." How much more explicit could a withholding of Court authority be? All the pseudo-textualist hand-wringing by the Hamdan court was just a smokescreen for a results-oriented approach that deviated from the clearly stated congressional intent in that statute. The Court simply does not like the constitutional power of the Congress to yank certain matters from its jurisdiction, as if courts were somehow exempt from the possibility of abusing their power and as if the elected powers should somehow be subordinate to its self-created power of "judicial review."

No, the Constitution's just fine as it is. There are no additional powers needed to find terrorists and punish them through military courts, though perhaps some statutory amendments to FISA and some other statutory creatures may be needed. What is needed constitutionally is a President that will not back down at the eleventh hour, as Bush has done, out of considerations of popularity. It's time for Bush to ignore the lawless Supreme Court's entry into matters that are completely and totally within the scope of his powers as the executive dealing in foreign and military matters.


Roach, the reasonableness standard in the Fourth Amendment appears not to extend to the specifications for a warrant. I am unfamiliar with case law on exactly how that reasonableness standard has been applied, but it does appear from the language that we can't simply declare some searches reasonable and then proceed to implement them without warrants. Can you direct me to specifics on the reasonableness standard for the Fourth Amendment?

You also refer to the expanded powers of the government in time of war, but we have already noted that this is not a time of war -- at least, not within the definition provided by the Constitution. I often wonder about the logic so often used that applies strict construction of the Constitution to permit all manner of Executive powers during time of war, then turns around and uses loose construction to declare that we are de jure at war even though Congress has not declared war. It seems that some people (I'm not accusing you of this) like to have it both ways.

I disagree with your characterization of recent Supreme Court decisions as ridiculous. In any case, I would appreciate it if somebody could explain how the Congress is given power in the Constitution to nullify the Judicial branch by fiat. What I read is that Congress can set up as many subsidiary courts as it wishes, but it can't touch the Supreme Court. And nowhere do I read that the Congress (or the Executive, for that matter) can simply declare their own actions as beyond the reach of judicial review. Could somebody explain where in the Constitution this power is granted Congress?


It seems to me the "war powers" are broadly executive powers, and there has long been a very sensible abstention doctrine in both military and foreign affairs. That said, I wouldn't objecdt to a requirement for a formal declaration of war for certain powers to kick in, but let's not forget there is a Congressional authorization of force at work here.

As for the Constitutional provision, it is in Article III which states, after setting forth the general run of cases to which Supreme Court jurisdiction applies, "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

Our system never intended to enshrie the courts as the final word on anything.


I´m surprised that there isn´t a stronger reaction to what Roach has written here.

To begin: Not ALL criminal procedures devolve to "reasonableness." An arrest can´t simply be reasonable, it has to be based on probable cause. The same applies to seizures. "no warrants shall issue, but upon PROBABLE CAUSE, supported by oath or affirmation, and particularly describing the place TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED." If the government is listening to my phone calls without a warrant, they have effectively seized the information that I want to transmit without probable cause.

This has incredible ramifications for self-incrimination, attorney/doctor-client privileges, personal privacy issues, and so on.

The example that you place here is a completely different situation. I´m originally from Utah, by the way. The felons in Utah were quite likely to flee the border, so there was a "reasonable suspicion" that they would be within the vicinity. It seems to me (I could be wrong on this, though) that the police also had some loose information as to where the felons were headed. Anyway, as such, we´re looking at a "stop" analysis as loosely interpreted by Justice Rehnquist et all, not a search or seizure. It´s analogous to DWI stops on the freeway. Therefore, it is completely outside the realm of a seizure, and is subject to a lower standard. (Also, "gunpoint" isn´t the best way to phrase it...the police weren´t actually pointing their guns inside every car that came by).

Wiretaps and reading e-mails, I would argue are seizures, because they are taking something away that people have a high expectation of privacy to. I honestly don´t want the police, or anyone else being able to play Big Brother with me every time I go to write an e-mail, or call my mom.

Now, you´ve made the distinction that in times of high terrorist activity that extra measures are needed to keep the peace and to keep everyone safe. I have already written about this, but I´ll reiterate it here. The constitution is an important document that has governed this country quite successfully for over two centuries. Personal rights and liberties were an important part of that document, and a high suspicion of an intrusive national government is present. If we are going to compromise it at every "crisis" that arises, then we are going to be in a perpetual freefall into tyrranical politics. The national government has shown for a hundred + years that it will continue to put the American people in a situation where they believe that we´re in a crisis. It will not change, and the people will get more and more comfortable with the government intruding into their lives. And as soon as some terrorists, or criminals, or who knows what find a new way of getting around the system, the national government will tighten the reigns a little more, and justify it through a national call to arms. There are creative ways to deal with the situation without trashing the constitution, as Professor Stone has been illustrating. Is his the only proposal in the country that makes sense? No. There are many others as well that would not take away the right against searches and seizures without a warrant.

Next, Roach writes that we should exclude the "enemy" from all but the bare minimum of constitutional protections because these people are not who the government wants to protect from "overreach." Well, you see, there is the big problem of people who are not guilty, but who are implicated based on faulty, or incomplete information. There is a great example in the NY Times of such a recent case. Canada is up in arms. (That´s right, no need to listen to Canada...they say "eh" too much. Couldn´t possibly have anything of substance to contribute...). I´m up in arms. The mentality that allows someone to sweep aside constitutional protections also allows someone to engage in torture and other unlawful measures, all for the "protection" of American citizens. When terrorism subsides, and the government starts to dig in on domestic crimes (it already did so with the "war on drugs" that has been largely forgotten), then the measures may very well continue, and that´s distressing to say the least. The government does and will maintain the power that it´s given, and it will adapt however it must in order to keep it (the courts included...I´ll talk a little more about that below).

On to the last section of Roach´s original post. This is the most disturbing of all, I think, because you´ve already blurred the lines between terrorism and domestic crime, as I pointed out above would happen. Thank you, Roach, for confirming the point, and illustrating openly to all the terrible danger of this entire search/seizure attack on the constitution. You say in essence that there is nothing to worry about, because the only people who will be caught are criminals who are stupid enough to write an e-mail, or say over the phone, that they are going to sell crack, or do marijuana, or any other infinite number of crimes. The problem is that there are also an infinite number of ways that those very comments would amount to no crime whatsoever. If the plot were later abandoned, if the speaker was saying it as a joke (which my friends and I do quite often, by the way), if the word "crack" were meant as a sports word (used that way for an excellent soccer player here in Europe), if it were adolescents/children simply pretending to live a life of crime (but not actually doing it), if drug words were used as some sort of code for some other lawful thing...on and on and on and on and on. These of course, could apply to terrorist situations as well. Adolescents pretending to be terrorists, while another group pretended to be the police out to catch them. This is normal, everyday teenage life, and it often continues into the lives of college students (perhaps not in this exact instance of pretending to be a terrorist, but certainly in using strange jargon or slang to communicate), and adults as well.

The real problem arises AS SOON AS the police can read/listen to that conversation, and believe that it is some sort of plot. It is going to be very difficult to disprove something like this if the government is putting forth circumstantial evidence from e-mails, telephone calls...etc., because they have already made a fairly strong case. People are highly influenced by government portrayals, and the burden is going to be very difficult in all of these innumerable situations.

Roach might as well move to China. Government instruments have a lot of power there to "protect the people." And, because the majority of the people don´t think they´ll ever be in trouble, they don´t worry about it. I hope that the U.S. can avoid a slide into tyrrany and constitutional improvisation. Why should I have to worry about what I write in my e-mails and what I say on the telephone, if the government has absolutely no evidence against me as an individual?

To stop the terrorists? Not for 99.99% of the calls/emails that are going to be stored in the Big Brother computer. This can only end in disaster.

On to Roach´s second post. "pacicists" that are "unfit to govern"? What?! The liberal half of the country seems to be the only people who want to use their brains to come up with a solution that 1) eliminates the threat of terrorism and 2) keeps constitutional practices intact. Unfortunately, the level-headed people in the country are outweighed by the Republicans in power. Such is life, and we have to live with it. In any case, there is no "backpeddling" going on, but rather, a constructive, intelligent debate on how to maintain our governmental structures. I refer you back to Stone´s arguments and proposals above (perhaps not the best in the world, but an fairly good starting point, at least). Whereas, if the Bush Administration could get away with it, it would get rid of every right it possibly could in order to find anyone remotely associated with terrorists and torture them until they get unreliable information to find other people to torture.

No, I´m afraid the backpeddling has been done by the Bush Administration and the right ever since the invasion of Iraq. Immediately after the invasion began, the cry turned from WMD to "Support our Troops," playing on the sensitivities Americans have for their military, rather than focusing on the substance of the WMD claim. By now, WMD has all but been forgotten by the right. Finally, now, the cry is "stay the course," without much substantive argument at all. Backpeddling, indeed.

Next thing, your assertion that the Supreme Court is absurd is almost mockable. These are mostly Justices that have been appointed by Republican Presidents. And yet they still overrule Bush´s outlandish power-grabs and unconstitutional implementations. The president was struck down on the merits.

Now, the Supreme Court also has other considerations to make. It is not expressly given the power to declare laws unconstitutional, but it does, and will continue doing it. Power once given is power retained. The courts are no different than Congress or the Executive, and they are going to keep the power they have given themselves. However, they also have to balance personal freedoms of the people against government intrusions. The Bill of Rights lists some of those things that the government cannot intrude upon, and in wake of the fact that Congress and the Executive will and do act extra-constitutionally at times, it falls on the court to arbitrate. This is an implicit power that will never go away. Hence, even if Congress tells the Supreme Court that they no longer have jurisdiction to hear freedom of speech cases, they will retain the power to hear it because SOMEONE has to balance the right of the people against the government, and the courts are in the best situation to do so. Otherwise, the constitution means absolutely nothing.

Last, if President Bush (or any other President) ignores the Supreme Court, the reign of tyrrany will have become complete. We are a country of laws, and a precedent will have been established that is completely destructive to the assertion of rights by the people against their government. Andrew Jackson´s reply to the Supreme Court is infamous, and I would hope it would never happen today. Otherwise, America will have lost its meaning.

Frederick Hamilton

Eras is wrong to cling to the notion we are not at war. There has not been a "declared war" since World War II. However Congress approved, authorized (ergo declared) the war against al Qaeda and Afghanistan with the AUMF. On a seperate vote of Congress, the approved, authorized (ergo declared) war against Iraq. The Supremes, Congress, the people, insurance companies, war regulations within our government all acknowledge we are at war, with the exception of Eras and those that try to argue this is not a war. Similar to those that argue the income tax is unconstitutional. Accept the fact we are at war, approved by two Congressional votes and accepted by the Supremes in Hamdi and Hamdan.

Roach is on the money. The Constitution is fine. Bush is living within the Constitution. He accepts (doesn't like it, possibly wrong decision) Hamdan and has asked Congress to comply with Hamdan by allowing the military tribunals and clarifying interrogation legalities with respect to the Geneva Convention.

Roach is also right by showing that the pacifist left hasn't met an enemy worth defeating or one worth defending the country against. But that's OK. That's politics. There is a place for the pacifist left in our body politic. Most of America just hopes they don't take control of the reins of power. Then things will get real dicey. But then that's what elections are all about. Whoever wins in November will pursue a path of war against al Qaeda. Simple as that. There will be secret CIA, NSA, TSP, et al whether Dems or Repubs control Congress and Congress will approve it. Why? Because the public sees the threat posed by the terrorists and believes it to be real. Smart on the public. It is real.

How awful would it be to experience another 9/11? The discussion after a second 9/11 will make the recriminations about our lack of preparedness pale in comparison to the 9/11 Commission recriminations. Best to figure out a way to reconcile Posner/Stone now before a second 9/11. The public will then be up in arms at those who don't see or believe the threat.

Don't be so harsh on Roach, he speaks the truth.

Frederick Hamilton

From Wikipidea: Something to think about, from 9/11 through March 2003. Not including most of 2003, 2004, 2005 and 2006. ie. Will not include Madrid and London (x2). No problem, be happy, be pacifist.

From Wikipedia:

Paris embassy attack plot foiled.
October 1: A car bomb explodes near the Jammu and Kashmir state assembly in Srinagar, India killing 35 people and injuring 40 more.
October 17: Israeli tourism minister Rehavam Zeevi is assassinated by the Popular Front for the Liberation of Palestine.
Anthrax attacks on the offices the United States Congress and New York State Government offices, and on employees of television networks and tabloid.
December 13: Terrorist attack on Indian Parliament.
Jewish Defense League plot to blow up the King Fahd Mosque in Culver City, California, foiled.
December 22: Richard Reid, attempting to destroy American Airlines Flight 63, is subdued by passengers and flight attendants before he could detonate his shoe bomb.

Terrorism against Israel in 2002.
Singapore embassies attack plot foiled.
January: Kidnapping and murder of journalist Daniel Pearl.
March 27: A Palestinian suicide bomber kills 30 and injures 140 during Passover festivities in a hotel in Netanya, Israel in the Passover massacre.
March 31: A Hamas suicide bomber kills 15 and injures over 40 in Haifa, Israel, in the Matza restaurant massacre.
April 11: A natural gas truck fitted with explosives is driven into a synagogue in Tunisia by an al-Qaeda member, killing 21 and wounding more than 30 in the Ghriba Synagogue Attack.
May 8: May 8 Bus Attack in Karachi kills 11 Frenchmen and two Pakistanis.
May 9: A bomb explosion in Kaspiisk in Dagestan kills at least 42 people and injures 130 or more during Victory Day festivities.
May 13: 12 people are killed in the Jaunpur train crash in India, caused when Islamic extremists cut the rails.
June 14: Car bomb at US Consulate in Karachi kills 12.
June 18: A Hamas suicide bomber detonates himself on a bus in Jerusalem in the Patt junction massacre. The attack kills 19 people and wounds over 74.
July 4: An Egyptian gunman opens fire at an El Al ticket counter in Los Angeles International Airport, killing 2 Israelis before being killed himself.
September 10: A train derailment in India kills 130 people in the Rafiganj rail disaster. Naxalite terrorism is suspected.
September 25: Two terrorists belonging to the Jaish-e-Mohammed group raid the Akshardham temple complex in Ahmedabad, India killing 30 people and injuring many more.
October: John Allen Muhammed and Lee Boyd Malvo conduct the Beltway Sniper Attacks, killing 10 people in various locations throughout the Baltimore-Washington Metropolitan Area from October 2 until they are arrested on October 24.
October 6: Limburg tanker bombing in Yemen.
October 12: Bali bombing of holidaymakers kills 202 people, mostly Western tourists and local Balinese hospitality staff.
October 17: Zamboanga bombings in the Philippines kill six and wounds about 150.
October 18: A bus bomb in Manila kills three people and wounds 22.
October 19: A car bomb explodes outside a McDonald's Corp. restaurant in Moscow, killing one person and wounding five.
October 23: Moscow theater hostage crisis begins; 120 hostages and 40 terrorists killed in rescue three days later.
November 21: Hamas orchestrates the Jerusalem bus 20 massacre. 11 people are killed and over 50 wounded when a suicide bomber detonates on a crowded bus in central Jerusalem.
November 28: Kenyan hotel bombing.
December 21: Kurnool train crash, Islamic extremists derail a train and kill 20 people in India.
December 27: The truck bombing of the Chechen parliament in Grozny kills 83 people.


One of the compounds hit by the Riyadh Compound Bombings.
Terrorism against Israel in 2003.
Suicide attacks in Iraq in 2003.
February 7: Car bomb kills 36 and injures 150 at the El Nogal social club in Bogotá, Colombia; FARC rebels are blamed.
March 4: Bomb attack in an airport in Davao kills 21.
March 5: A Hamas suicide bomber kills 17 people and wounds 53 when he detonates a bomb hidden under his clothing in the Haifa bus 37 massacre.
March 23: SGT Hasan Akbar, USA, murdered 2 officers and wounded 14 soldiers in a grenade attack at an Army base in Iraq.

Boy is this terrorist thing overhyped or what? Don't worry be happy.

Kimball Corson


I opposed the war in Iraq before we attacked. Understanding that the scope of the 9/11 tragedy was an unanticipated accident (the towers were not expected to fall by anyone) and believing that an attack on Iraq made about as much sense as attacking Mexico, as someone a bit later put it, I was worried that we were mistakenly biting off much more than we could chew. Having lived in the Middle East, I knew our military presence there, coupled with our support for Israel, was enraging a segment of the Arab population and that there would be big trouble between the Sunnis and the Shiites if Saddam was removed and not able keep a lid on things. Too, I thought the Wolfowitz plan to depress oil prices by increasing oil production and use the revenues to rebuild Iraq would most likely not work out as planned, in part because increasing production in a war zone is next to impossible. Production usually falls, just as it did. Too, I understood Rumsfeld was committing far too few troops from all I read in the military press, and that air attacks followed by an unimpeded triumphal march into Baghdad and a peaceful rebuilding of the country thereafter was extremely unlikely. Our military and Iraqi experts knew better. Rumsfeld, et al., didn’t and they prevailed.

Our problem now with terrorism and al Queda is inextricably tied to Iraq as I anticipated and as ben Lauden has made clear ad nauseum. Now we have 16 of America’s spy and intelligence agencies saying the war in Iraq fuels terrorism, just as ben Lauden has long explained and I worried about. Still, the Administration doesn’t get it. Militarily, we should not have fighting or standing troops in Arab countries any more than Arab countries should have their troops on United States soil. As for bringing democracy to the Arab world, you know better than I do what a farcical proposition that is. The Qur’an and shariah law call for a theocracy, which is usually want Arabs want, if they are not trying to get in to the EU or pander to Western secular interests. The real folly of our adventure in Iraq becomes clear when we ask ourselves why we are there or why did we invade. A good answer is impossible. The remaining proposition voiced -- to take the fight to the Arab world to keep it out of America -- is circular within the framework of my analysis. We were in Afghanistan and Saudi Arabia well before 9/11, roiling Arabs well before that date. ben Lauden was incensed over our troops being on Saudi soil. Our support of Israel and Israel’s oppressive and mean-spirited policies toward the Palestinians only exacerbated this situation. We were asking for it and we got it. Then instead of attacking just al Queda, we decided to invade Iraq, although the connection at the time between the two was quite tenuous at best. Saddam did want terrorists running free in his front yard and he was reluctant to cooperate with and did not trust any non-bath group. Now we are surprised and concerned that Iran wants nuclear weapons and a strong defense, with US troops in Iraq on one side of Iran and in Afghanistan on the of the other side of Iran. Are we dense or what? Why don’t we get it? Or are we just in acute denial and like a deer frozen in a car’s headlights. Where is our courage to admit error and adjust to a sensible course? Finally, I have been opposed to America’s near blanket support for Israel for years, believing much more in a carrot and stick approach, and thinking American politicians should stand up to the right-wing religious and Jewish lobbies that insist on our policies and show some backbone by speaking out on these matters. I have lost friends over this issue. Speaking out alone would help us in the Arab world. We are too much on the moral low road and the world is coming to realize that and hate the U.S. for it, as well it should. We don’t even feel good about ourselves, much less about our government.

Kimball Corson

"Saddam did NOT want terrorists . . ." that should read. Sorry.

Kimball Corson

Frederick, too many of the attacks on your list are not al Queda or al Queda related. The list is inflated. Many on it are nuts or people with other grievances, often against of governments. I agree with you and Roach that there is nothing wrong with the Constitution, The problem is with government officials and the Administration who ignore and break it and other domestic and international laws. According to the community of international lawyers, we are an outlaw, rogue nation in that quarter alone. Domesticly, we do little better. This Administration will be remembered and is recognized already as one that breaks any law at will that interfer with what it wants to do.

Kimball Corson

"against other governments . . ." that is.

Kimball Corson

Conservatives then come along, ex poste, and try to rationalize the legal infractions and with a level of perception and sophistication the the Administration never dreamed of. Bush does not listen to lawyers who do not tell him what he wants to hear.

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