Marty Lederman has an excellent post entitled Judge Posner's Lament About the Rule of Law, responding to Posner's The Constitution vs. Counterterrorism in the Wall Street Journal:
Here is a snippet from Posner:
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.
And from Lederman:
Regardless of its merits, Judge Posner's complaint is slightly off-the-mark in one important respect: The Court in Hamdan did not rule that the President's commissions were inconsistent with an 18th-Century Constitution -- it ruled that the commissions violated statutes enacted by a 20th-Century Congress (and a treaty ratified by a 20th-Century Senate), with the approval of 20th Century Presidents. And although Judge Taylor's decision was largely based on the Fourth Amendment, the central and clear problem with the NSA program (which Judge Taylor also emphasized, albeit not as much as she should have) is that it is in violation of another statute, FISA, which was carefully enacted, over a long period of time and after extensive deliberation and investigation of past abuses, by yet another (late) 20th-Century Congress, with the approbation of two late-20th-Century Presidents.
The courts in these cases, in another words, are merely requiring the Executive branch to follow the law enacted by the political branches. Why on earth should Congress seek to strip the courts of the power to ensure that its own enactments are honored? Judge Posner does not say. (He obviously is not fond of those statutes, enacted as they were decades before 9/11/01; but if he's right that they're obsolete, why is the proper remedy not a legislative (and public) debate about whether and how to amend them to respond to modern exigencies?)
