an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Dan Solove has an interesting post over at Concurring Opinions on last week's Second Circuit decision upholding the constitutionality of random searches in the New York City subway system. There's a modestly interesting thread in the comments section there involving Dan, Orin Kerr and me, among others.
Dan's principal complaint about the decision is that the courts largely deferred to the government with respect to the question of how effective the search program is at detecting terrorist activity. As I suggest in the comments, however, it appears from the court's opinion that this program is not predicated on actually interdicting any terrorist acts. Its purpose, instead, is simply to convince Al Qaeda that there is a not-insignificant risk that concerted, multi-bomb plans of attack would be thwarted. And if that's the objective, then it really doesn't much matter how comprehensive or frequent the searches truly are -- all that matters is that there's some uncertainty about AQ's prospects for success, an uncertainty that, according to expert tesimony, serves as a useful deterrent to such planned attacks.
As I wrote in the comments there, under the government's deterrence theory that the court of appeals endorsed, data about the frequency or effectiveness of the searches are beside the point: It doesn't matter how many people are searched, or that the searches never turn up evidence of terrorist acts. Indeed, it probably doesn't matter, on their theory, whether there are any serious searches going on at all. Uncertainty is everything. And so, if the federal courts were actually to "find" that the searches are minimally intrusive and are thus ineffective -- that all but the most amateur terrorists would be able to easily circumvent the program -- such a finding would itself undermine the actual effectiveness, the deterrent value, of the program.
This is a difficult argument to counter. It doesn't have any particular stopping point, and would appear to justify all manner of police practices intended to disorient and deter Al Qaeda. So it is a real problem figuring out how to deal with it under Fourth Amendment doctrine.
More broadly, I think this is an example of a recurring theme in the conflict with Al Qaeda: the asserted need, above all else, that U.S. law and law-enforcement practices not be transparent, the better to create uncertainty about the conduct and limits of anti-terror efforts. One sees it, for instance, in the torture debate, where the whole point appears to be to obfuscate which interrogation techniques are lawfully permitted so that Al Qaeda detainees will not know what their captors are capable of doing. And in the Padilla detention case: By the government's own admission, the interrogation of Padilla would only be effective -- the relationship of "trust" and "dependence" with his interrogators could only be sustained -- if Padilla were convinced that all hope was lost, that no judicial processes were at work, that he had no prospect whatsoever of any legal process, let alone due process. If he were actually permitted to speak to an attorney -- who would tell him that there was an actual lawsuit pending on his behalf! -- the jig would be up. And also in the debate about electronic surveillance: The Administration claims that it could not actually amend FISA to permit the NSA program, because such transparency -- you know, the sort one gets when the laws are actually written into the statute books rather than in secret DOJ memos -- would tip off the terrorists to what our government is doing. Everyone, including the Congress, must actually think that FISA is still fully operative -- the better to lull everyone into speaking freely across the wires.
In sum, this appears to be of a piece with a concerted effort to establish a system of secret law and secret law-enforcement practices. The ordinary checks and balances of an open system in which the courts, Congress and the public understand what the law provides, and are able to evaluate what the government is doing? -- Well, that only helps the terrorists. Which is undoubtedly true. In a secret police state, where there's no assurance that the law sets any limits on the state, and where the legal limits are unknown -- no more than rumor -- wrongdoers surely are deterred by the uncertainty of it all. (Add obligatory Kafka citation.) Abiding by a rule of law -- of transparent, open, law -- does, indeed, give wrongdoers more information about the limits of the state. That's one of the costs of democracy. Posted
by Marty Lederman [link]
What the government is doing is inducing fear, even on the part of the multitudes that are not threats, watch your step at all times as who knows when the next shoe will drop and step on you, intentionally or accidentally. The government is like a centipede, with a fetish for dropping shoes. And the shoes dropped may be timed to coincide with events such as elections. As the late Ed Sullivan used to say "This is a really really big shoe!"
"It should be noted, . . . that where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be found if the condition is met. (If that were the extent of the probability determination, an anticipatory warrant could be issued for every house in the country, authorizing search and seizure if contraband should be delivered? though for any single location there is no likelihood that contraband will be delivered.)
"Rather, the probability determination for a conditioned anticipatory warrant looks also to the likelihood that the condition will occur, and thus that a proper object of seizure will be on the described premises. It must be true not only that if the triggering condition occurs ?there is a fair probability that contraband or evidence of a crime will be found in a particular place, . . . but also that there is probable cause to believe the triggering condition will occur."