Dicey Versus Posner On Ordinary Courts

Brian Tamanaha

Marty offers a detailed response to Judge Posner's WSJ Op-Ed piece below. I will focus on a very narrow point. Posner argues:

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.
....
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....

At first blush, it might appear odd that an arguably momentous decision for national security could be rendered by a randomly selected lowly district judge with no particular expertise in such matters. Posner proposes that "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." He suggests that, at the very least, such decisions should be made by judges with special knowledge about national security.

That sounds sensible, but is it right? A.V. Dicey, the conservative English constitutional law giant, identified the following as the core element of the rule of law: "no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the law." Dicey repeatedly emphasized the significance of ordinary courts in maintaining the rule of law: "In England the rule of law is coterminous with the cognizance of ordinary courts: it is the rule of the judicature."

Dicey insisted that government officials must be accountable before courts, and he was wary of specialized courts as--to put it in modern terms--susceptible to capture. Posner's position runs counter to both of these ideas.

I do not pretend to know what Dicey would say about these matters today; nor would I say that he was always right. But there is wisdom in his insight that the rule of law is preserved by a decentralized system comprised of a multitude of ordinary judges rendering decisions--including decisions regarding the propriety of the actions of government officials--on a range of issues according to their best reading of law.
Posted 4:08 PM by Brian Tamanaha [link]