I’ve just finished reading Judge Richard Posner’s new book, Not a Suicide Pact: The Constitution in a Time of National Emergency (Oxford, 2006). The book is a slender volume, with a remarkable feat for a law professor — absolutely no footnotes or endnotes or citations of any sort save a short bibliography at the end.
Recently, several senators have been accused of putting a “secret hold” on a bill designed to curtail pork-barrel spending. According to Reuters:
Any member of the Senate may place a secret “hold” on legislation, which prevents it from being brought up for a vote until concerns about the measure are resolved.
In discussing security vs. civil liberties, I’ve argued that too little questioning of the security side of the balance is going on. The government engages in some elaborate and expensive program in the name of security, and instantly the debate shifts to whether we can deal with the sacrifices in civil liberties. The effectiveness of the security measure is rarely questioned, and the defense of this position is that government security officials have the expertise and shouldn’t be second guessed. But security is about choices. And I wonder whether we’re making wise ones when it comes to security. I found the following article to be particularly disheartening:
Bruce Schneier has a thoughtful and provocative post about how our overreactions to terrorism are exactly what the terrorists want:
Earlier today, a federal district judge struck down the Bush Administration’s NSA surveillance program which involved intercepting international electronic communications without a warrant. The opinion is available here. I have not had time to read the opinion carefully yet, but I am especially intrigued by the court’s use of the First Amendment as one of the grounds to invalidate the program. I just completed an article entitled The First Amendment as Criminal Procedure in which I argue for First Amendment regulation of government information gathering. In the final section, I have a discussion of the NSA surveillance program.
The U.S. Court of Appeals for the 2nd Circuit recently upheld New York City’s program of random searches at subways. The case is McWade v. Kelly, No. 05 6754 CV (2d Cir. 2006). The program was initiated after the London subway bombing. Back in December, 2005, a federal district court upheld the searches, which are conducted without a warrant, without probable cause, and even without reasonable suspicion. In a blog post critiquing the decision, I wrote:
Recently, AOL released about 20 million search queries of over 650,000 users to researchers. As the Washington Post reported:
Recently, in United States v. Ziegler, a panel of the U.S. Court of Appeals for the Ninth Circuit concluded that under the Fourth Amendment, a private sector employee has no reasonable expectation of privacy in his computer if the employer’s computer administrator has access to that computer.
