I’m usually a fan of the Becker-Posner Blog, and occasionally of the opinions of the titled author, 7th Circuit court judge Richard Posner. He’s a prolific author who writes volumes of popular jurisprudence, including today’s piece for The New Republic defending the NSA wiretap program. What if it works, he asks? Two problems.

When Posner says that “Law in the United States is not a Platonic abstraction but a flexible tool of social policy,” I wonder why a prominent jurist like himself would not see how some (many?) value upholding the law for it’s own sake. As Jon Margolick mentioned to me earlier today, it is the reason why drug dealers get off on procedural technicalities–isn’t the important part that the law maintain its integrity, not that we advance the social policy of ridding our society of drug abuse? Years from now we want procedural justice to still mean something, and that includes making sure that the executive branch is not de facto excused from their misdeeds. Because the President is not above the law, it is indefensible to set a precedent that he may flout laws he dislikes–just because he wants to.

A second problem, as Posner alludes to, is that we can’t know the success of the program due to secrecy limitations. The results of the NSA program, including whether it has or has not thwarted attacks, cannot therefore be used in evaluating the domestic wiretapping policy. But that’s not the point: the question of successful (or even of good) policy is distinct from the question of legality. It looks like the administration (and Posner?) is trying to make the policy logically antecedent to the question of law. But if it can be shown that eavesdropping on international-domestic telephone conversations has successfully thwarted terrorist attacks, then perhaps a case can be made for expanding the legal boundaries of wiretapping: amend FISA, or have Congress authorize Bush’s program. The repugnance of the program mostly centers on how the (largely) unchecked executive branch has thwarted the limits imposed by FISA, and in the process, has probably broken the law. The architects of the program, if they knew they were breaking the law, need to be held accountable, now. I await Specter’s judiciary hearings with bated breath.

(I’m comforted by Posner’s sensible suggestion for a new rule on FISA that evidence gleaned through the wiretapping programs only be available in national security-related cases, and not, as he says, cases involving people who are defrauding the IRS. Safeguards like this, which would prevent the Bush administration from overreaching and gobbling up more law enforcement powers, make the legal use of wiretapping programs seem, at least on their face, less onerous.)