Wednesday, December 21, 2005

Posner's anxiety closet

Richard Posner, a well-regarded judge on the 7th Circuit Court of Appeals, wrote a fear-driven apologia for Bush's FISA power-grab in the WaPo. Numerous bloggers, notably Marty Lederman at Balkinization, took his absurd reasoning apart.

But it doesn't end there. Posner actually took some questions online. (Imagine the fireworks if the hardcore wingnuts did the same.) His comments reveal a great deal.

Lansing, Mich.: You offered up this hypothetical: "Suppose that unbeknownst to you your neighbor is a terrorist, and you happen to mention his name in the conversation. A government computer picks up the name and learning from your conversation where he lives, arrests him." But this is beside the point; the hypothetical that concerns most reasonable persons is when your neighbor talks about you or you talk about yourself. Could you please address those situations, much as the Fourth Amendment does?

Richard Posner: I thought I did answer the question, but maybe I wasn't clear. If the neighbor is talking about you, and you are not a terrorist, what he is saying is not of interest to the intelligence services and will not be flagged by the search engines for human scrutiny. But suppose his phone number is on a list of terrorists' phone numbers; then the conversation will be scrutinized in an effort to find out the terrorist's address, or other pertinent information. Does this level of scrutiny worry you? It doesn't worry me.

Is he really that gullible? Those being surveilled under color of the war on terrah have included lots of people who have nothing to do with the 9/11 Al Qaeda stuff, unless there is some devastating secret bombshell document that ties vegans and environmentalists to Islamist Fundies.

When you trust the police/military to spy sans oversight, they will spy on their definition of the enemy, not mine.

There's more:
(H)ow do you know you're at less risk of being killed by a terrorist than being run down by a car? The risk in the sense of probability of being killed by a nuclear bomb attack on Washington, a dirty-bomb attack, an attack using bioengineered smallpox virus, a sarin attack on the Washington Metro (do you ever take the metro?), etc., etc., cannot be quantified. That doesn't mean it's small. For all we know, it's great.

Better safe than sorry.

But I want to ask you and the other questioners: what precisely is the privacy value that you fear would be impaired by data mining?

That is an internally coherent way of loooking at things. But it wasn't the intent of the framers, and it sure as hell isn't what traditional conservatives used to think. Our Bill of Rights does not put the onus on the public to justify our discomfort with warrantless searches. It puts the burden on the givernment to justify itself when it climbs into our shorts.

The guy sounds scared shitless. If he would just shut up and go away, I might feel sorry for him.


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