Judges and National Security – The Supervision of Counter Terrorism

Last week I attended the 4th Annual Meeting of the American College of Business Court Judges in Chicago along with several other judges from our state who preside over dockets assigned to the Business and Technology Case Management Program in the Maryland Circuit Courts. At that conference, the keynote speaker was Judge Richard A. Posner, who is a federal circuit judge as well as a senior lecturer at the University of Chicago Law School. Although Judge Posner, on that occasion, spoke on a topic not of general interest to anyone except the judges present for our meeting and perhaps not even to all of them, he did discuss a wide range of subjects during informal discussions which preceded his formal remarks. So my bias is fully disclosed, I consider Judge Posner to be the finest mind and because of that the most interesting judge and legal writer that this country has produced in the last quarter of a century. He has written books and articles on a wide range of subjects which include but are not limited to law and economics, psychology, national security issues, and even a book entitled “Sex and Reason”. That he has never been nominated for the Supreme Court is unfortunately more of a comment on the potential political controversy which could no doubt be generated by a sensationalist focus on his extensive paper trail than on his qualifications for the highest court. The fifty-six books and articles written by Judge Posner contain some discussions of unconventional even provocative subjects. That fact coupled with the intensely politicized theatrics that have come to characterize the confirmation process that any nominee of either party must undergo if nominated for the federal bench and particularly the Supreme Court has probably deterred Presidents of both parties from nominating him for the Supreme Court and perhaps even deterred him from seeking the job. As President-Elect Barack Obama, literally working across town in the same city we were meeting in – Chicago, focuses on the selection of his “national security team”, he might want to consider the ideas of his former colleague on the faculty of the University of Chicago Law School, Judge Posner. Posner’s book published in 2006 entitled “Uncertain Shield: The U.S. Intelligence System in the Throes of Reform” and also his most recent book entitled “How Judges Think” together provides potentially important ideas for whomever is selected by Barack Obama to conceptualize the restructuring not only of the U.S. Intelligence System, but also the extent of the supervision of that system by the federal judiciary. The restructuring of the intelligence community is mandated by the Intelligence Reform and Terrorism Prevention Act of 2004. That restructuring has never effectively taken place. Posner further points out that the role of the judiciary or even whether it has a role and responsibility for the supervision of our effort to combat terrorism has never been clearly established. The result of this is that seven years after the 9/11 attacks, the institutional structure of U.S. counter Terrorism is in disarray. The Department of Homeland Security is at best a work in progress and that progress is almost universally acknowledged to be as Posner describes it “slow and painful.” The role and responsibility of the judiciary in combating terrorism is described accurately by Posner as “incoherent” at best. The evidence to support both of those conclusions cited by Judge Posner is both abundant and convincing. The judiciary currently has no court or official(s) with overall judicial or even administrative responsibility for the review of counterterrorism. In fact other than the judges now assigned to the two foreign intelligence courts, federal judges do not even have security clearances. More to the point, as Judge Posner points out, “federal judges have no education or experience in national security matters” to reference their decisions. Other points which Judge Posner points out are that “the criminal justice system is designed for dealing with ordinary crimes, not global terrorism as illustrated by the rules that entitle a person arrested to a prompt probable cause hearing before a judge and that criminal trials be generally open to the public except in certain limited circumstances. The Supreme Court has already invalidated the original version of the Military Commissions that the Bush Administration’s Defense Department tried to establish to try captive “terrorists” before they even tried to have a trial. Of greater concern to Judge Posner is what he describes as the “strangeness” of allowing a federal district judge in Detroit Michigan randomly selected from 700 federal judges with no knowledge or experience in national security to decide “as momentous an issue as whether the National Security Agency’s conduct of electronic surveillance outside the boundaries of the Foreign Intelligence Surveillance Act was illegal. She decided that it was. The one court with judges who have at least some self-taught expertise and the security clearances to go with it, the FISC Court was bypassed because its jurisdiction was limited to foreign intelligence surveillance warrants. The NSA Program under attack in the litigation involved warrantless surveillance thereby giving new dimension to the elevation of form over substance. The fact that this untrained federal district court judge’s decision as well as other so far untrained federal court district judge’s decisions are subject to review by appellate and Supreme Court judges also not chosen for their knowledge or training in national security provides little or no comfort to Judge Posner. How the restructuring of our counter terrorism effort should proceed and what national or even international role the judiciary should have in the supervision of it are issues, the resolution of which will be critical for our country and the world.

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