Richard Posner Wants You To Learn to Love Secrecy

As you’ve likely already heard, the 7th Circuit ruled aggressively against Adel Daoud, overturning Judge Sharon Johnson Coleman’s ruling that his lawyers could review his FISA warrant. This was utterly predictable, but unfortunate nevertheless.

Steve Vladeck had a really good post on both Judge Ricard Posner’s overreach and Judge Ilana Rovner’s description of the problem FISA presents for challenging the truthfulness of FISA warrant materials.

Here’s how he describes Posner’s obnoxious assumption of the District Court job to actually determine whether defense review is necessary.

But rather than accept—or at least sympathize with—Judge Coleman’s efforts to square a circle, Judge Posner derided them by suggesting that the government has a right to keep these materials secret, repeatedly criticizing calls (one is left to wonder from where) for “openness.” “Not only is federal judicial procedure not always adversarial,” Posner wrote; “it is not always fully public.” This is true, but entirely beside the point; Judge Coleman wasn’t seeking to open the proceedings; she was seeking to provide security-cleared defense counsel (who, just like everyone else, are subject to the Espionage Act) with access to classified information.


But far more troubling than these (gratuitous) rhetorical flourishes is the last part of Judge Posner’s opinion, which doesn’t just conclude that disclosure to Daoud’s defense counsel in this case is unnecessary under § 1806(f)—the step the Court of Appeals criticized Judge Coleman for skipping—but then goes on to resolve Daoud’s Franks motion on the merits. Thus, the majority concluded that “our study of the materials convinces us that the investigation did not violate FISA,” even though the district court hadn’t even gotten that far.

In other words, in a case in which the whole question is how judges should decide whether they need adversarial participation in order to properly resolve a FISA-based Franks motion, Judge Posner’s answer is, in effect, “don’t worry about it; we judges can handle this without any help.” With all due respect to one of the brightest and most gifted appellate judges in the country, how does he (or his colleagues) know that? Indeed, I thought one of the most significant revelations from the FISA-related disclosures of the past year is that, in fact, judges won’t always get these issues right without the benefit of adversarial presentation and argument.

What’s especially odd about Posner’s opinion, however, is his own understanding of the process he himself used to determine this warrant was legal.

Remember that at the original review of this case, Posner and his colleagues had an unannounced secret hearing to review the warrant, attended by a goodly chunk of the US Attorney’s office. After that, the Court issued an order requiring even more information from the government.

Asking for additional information is legal. Under FISA a reviewing (District) Judge can consult “such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized.” But the fact that the Circuit had to go back for even more information, after having seen all the materials Coleman reviewed, suggests the question was not as easy as Posner suggests.

And Posner wants us to believe his assumption of the role of the District Judge is a benefit to Daoud. He does so, first, in his bizarre rant about secrecy, when he emphasizes the times when secrecy benefit defendants. Then he goes further when dismissing Daoud’s lawyers objection to the secret hearing.

Their objecting to the classified hearing was ironic. The purpose of the hearing was to explore, by questioning the government’s lawyer on the basis of the classified materials, the need for defense access to those materials (which the judges and their cleared staffs had read). In effect this was cross-examination of the government, and could only help the defendant.

Only it wasn’t. It was an opportunity for the government to get a second bite at the ex parte apple, which by itself apparently wasn’t even sufficient to address questions about the application.

As Vladeck laid out, Rovner wrote a concurrence in which she acknowledged the failure of FISA to provide defendants with the ability to challenge the case against them.

But that’s not the direction our judiciary is going. On the contrary, it is embracing more and more secret procedures, all in an effort to hide what the government is really doing in its countereterrorism efforts.

15 replies
  1. bloopie2 says:

    Yes, disgraceful. So much for the independent (of the Executive) judiciary.

    Can this decision be the subject of (a) rehearing and/or (b) rehearing en banc?

    • bmaz1 says:

      Disgraceful is a word I have LONG used to describe Posner.
      As Steve touched on, there is simply no way to square the Constitutional rights to challenge and confrontation of evidence that were recognized in Franks v. Delaware with the decision of Posner. One is of grant pursuant to the Constitution, the other is a mere statute (although a powerful one) that should be secondary to Constitutionally derived rights. In this regard, although she was better in her rhetoric, Rovner was just as gutless and wrong as Posner.

  2. milkshaken says:

    Richard Posner is really disappointing. He has built his reputation of an outspoken independent-thinking judge who had little patience for government stonewalling and in the past, has been scathing about the government abuses of due process. But now he is taking an untenable position that the FISA material secrecy consideration absolutely outweigh the right of the defendant to see and challenge warrants used to collect evidence against them. Disgraceful!

  3. KingofRock65 says:

    As a matter of appellate procedure, isn’t the Appeals Court prohibited/ limited from adding to the factual record? I’m not sure under what authority it could perform “[their] own study of the classified materials…”

  4. C says:

    I wonder if his vehimence is driven largely by the fact that they are questioning HIS decisions? I.e. does he really wish to protect to government or is he just pissy that they chose to question his wisdom in holding a secret one-sided meeting which any first-year law student would see as a red flag.

    On a related point I am shocked to see so many judges, like members of congress, actively championing their own impotence. I get that congress is basically just a bunch of people who hope to be President someday or want to be on the Intel committees but judges? Does Posner think he’ll be on SCOTUS? Sad.

    • orionATL says:

      no blemishes to mess up a scotus opportunity? that certainly was my thought.

      plus, the senior judges appear exceeding fearful of any conflict with the executive – thus conceeding the distinct inferiority of the judicial branch these days re natsec.

      social and economic policy, now that’s where opportunity knocks for the conservative judgery. “the people” can’t fight back against the court like execgov can.

  5. JTMinIA says:

    I see BMAZ’s “fucking disgrace to the federal bench” and raise to “near-future nominee to SCOTUS.”

  6. fritter says:

    Wow, I used to think “They hate us for our Freedom’s” was some kind of sick joke. Now, its apparent they really do hate us for our (former) Freedoms.

  7. anonymous says:

    America could save a lot of money (which could be used to prop up the multinational banking/weapons/oil/drugs cartels) by abandoning the pretense and returning to the historically proven structure exemplified by: SS / Gestapo / Einsatzgruppen . . .

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