The only valid ground for forbidding human inspection of such data [gathered by datamining] is fear that they might be used to blackmail or otherwise intimidate the administration's political enemies. That danger is more remote than at any previous period of U.S. history. Because of increased political partisanship, advances in communications technology and more numerous and competitive media, American government has become a sieve. No secrets concerning matters that would interest the public can be kept for long.There are actually other grounds, but set that aside.
We're talking about a program which was kept secret for 3 years, which the Bush administration intimidated the press into keeping secret for that whole time. To say that the program couldn't be abused because secrets can't be kept is incoherent.
He goes on to talk about how there are these big gaps in what the current law allows. Fine. Maybe.
I wrote on Monday:
Running things through a computerized search like this raises complex legal issues, and I'm sure legislative authority could be arranged for this program, with appropriate safeguards and oversight, if this is what happened. I think that could be done in an acceptable way. But it violates both the spirit and letter of existing law,And Posner seems to agree. But he also seems to think the whole thing is OK because the law hasn't caught up yet.
As Judge Posner undoubtedly knows, that isn't how the law works. If we cast our mind back to Schoolhouse Rock, if the law doesn't allow the government to do something, the Congress has to pass a new law.
If Bush wanted the authority to do things that the law doesn't currently allow, he could have asked Congress. At the time, they would have done just about whatever he wanted. But he preferred to make things up as he went along.
And that's why the bit of self-quoting above ends with a comma. The sentence ends,
and I want the Peeping Tom in Chief to do jail time for that.You do the crime, you do the time.