To nobody’s surprise, my colleague and electronic surveillance law expert extraordinaire Orin Kerr at the VC beat everybody to the punch in announcing that the 1st Circuit reversed the panel in United States v. Councilman. As Kerr concisely explains the panel decision in an earlier post:
This great cartoon by Tom Toles (Washington Post) captures what I’ve been blogging about (here, here, and here) with regard to national security, terrorism, and privacy. We’re spending tons of money on elaborate ways to detect terrorists, such as Secure Flight, data mining, searches of bags in NYC subways, and so on. Meanwhile, we’re not giving sufficient attention to an even greater threat — a potential bird flu pandemic.
Structural arguments are still quite in vogue these days. Federalism versus a national government. Judicial “activism” versus judicial restraint. Filibuster rule versus no filibuster rule. All of these arguments purport to be about structural rules, and they are independent of ideology insofar as they could be argued by liberals or conservatives depending upon who happens to be in power at the moment.