Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit writes in today's Washington Post:
These programs [including the NSA's electronic surveillance of U.S. citizens within the United States] are criticized as grave threats to civil liberties. They are not. Their significance is in flagging the existence of gaps in our defenses against terrorism. The Defense Department is rushing to fill those gaps, though there may be better ways.Far be it for anyone to say that Judge Posner has missed the mark on any subject, but it appears as though the prevailing concern is not that these domestic programs are threats to civil liberties or the privacy of American citizens. Rather, the overriding constitutional and public concern is that these programs, specifically the NSA's domestic spying, are conducted without court order and thus ignore the ability of the judiciary to balance the need for information against other considerations, such as privacy. That is, the problematic nature of the domestic surveillance is not secrecy, but accountability: the warrantless spying prevents the courts from checking the power of the executive and from protecting the people from baseless searches, roles that the courts should hold despite understandable concerns related to terrorism and intelligence gaps.
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