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The Constitution vs. Counterterrorism

Last week a federal district judge in Detroit ruled that the National Security Agency's conduct of electronic surveillance outside the boundaries of the Foreign Intelligence Surveillance Act is illegal. As a judge I cannot comment on the correctness of her decision. But I can remark on the strangeness of confiding so momentous an issue of national security to a randomly selected member of the federal judiciary's corps of almost 700 district judges, subject to review by appellate and Supreme Court judges also not chosen for their knowledge of national security.

A further strangeness is that the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review (which hears appeals from FISC) have been bypassed, with regard to adjudicating the legality of the NSA program, in favor of the federal district court in Detroit. The reason is that the jurisdiction of those courts is limited to foreign intelligence surveillance warrants, and the NSA program under attack involves warrantless surveillance.

In June, the Supreme Court in the Hamdan decision invalidated the military commissions that the Defense Department had established to try captive terrorists -- commissions that had never succeeded in conducting any trials. And the pending Senate bill to revise the Foreign Intelligence Surveillance Act contemplates the submission of NSA programs to the Foreign Intelligence Surveillance Court for an opinion on their legality -- a problematic procedure because federal courts are not permitted to render advisory opinions. A court might even hold that a surveillance "program," as distinct from the surveillance of specific individuals, was a "general warrant," which the Fourth Amendment forbids.

Five years after the 9/11 attacks, the institutional structure of U.S. counterterrorism is in disarray. The Department of Homeland Security remains a work in progress -- slow and painful progress -- and likewise for the restructuring of the intelligence community decreed by Congress in the Intelligence Reform and Terrorism Prevention Act of 2004. And now, in the wake of Hamdan and the Detroit case, we learn that we do not have a coherent judicial dimension to our efforts to combat terrorism. (One reason may be that there is no official with overall responsibility for counterterrorism policy.) Other than the judges assigned to the two foreign intelligence courts, federal judges do not have security clearances and, more to the point, have no expertise in national security matters. Moreover, the criminal justice system is designed for dealing with ordinary crimes, not today's global terrorism, as is shown by the rules, for example, that entitle a person who is arrested to a prompt probable-cause hearing before a judge and require that criminal trials be open to the public.

* * *

Other countries have greater flexibility in tailoring their judicial procedures to the special problems posed by terrorism. We are boxed in by our revered 18th-century Constitution as interpreted by the Supreme Court. The Hamdan decision suggests that a majority, albeit a bare majority, of the court is unsympathetic to arguments that our understanding of certain provisions of the Constitution needs to be revised to meet contemporary needs. The court that resisted Roosevelt's New Deal in the 1930s eventually bowed, and so may the court in the current era, but we cannot wait for that to happen.

The dilemma of defeating terrorism while respecting essential civil liberties can perhaps be resolved by a change of focus from the adjudicative process to executive and congressional oversight. This would mean less effort at trying to prevent terrorism by means of criminal prosecutions, whether in regular courts or in ad hoc military tribunals, and less use of devices, such as the warrant, that are used mainly in criminal-law enforcement. It is telling that no one was ever tried by the military commissions set up in the wake of 9/11, and that criminal prosecutions of terrorists have been few and have seemed to have had little impact on the terrorist menace.

Terrorists are difficult to deter and locking them up has only a limited preventive effect because the supply of terrorists is virtually unlimited. Fortunately, if a terrorist plot is detected it will usually be possible to neutralize the plotters without prosecuting them. Some can be deported, some held in administrative detention, some "turned" to work for us, some discredited in the eyes of their accomplices, some sent off on wild-goose chases by carefully planted disinformation, and some carefully monitored in the hope that they will lead us to their accomplices.

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.

Mr. Posner, a federal circuit judge and a senior lecturer at the University of Chicago Law School, is the author of "Uncertain Shield: The U.S. Intelligence System in the Throes of Reform" (Rowman & Littlefield, 2006).

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