Posner vermeule accommodating emergencies

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The ratchet effect can occur because anti-terrorism laws may address multiple threats.

Anti-terrorism laws may come about because of a particular terrorist group or incident.

Despite the heated rhetoric on both sides of the surveillance debate, the NSA’s collection of telephone call metadata appears to be legal based upon the Foreign Intelligence Surveillance Court’s (FISC) interpretation of section 215 of the USA PATRIOT Act.

Perhaps the most interesting remarks about the NSA controversy thus far came from Representative Jim Sensenbrenner, one of the original authors of the USA PATRIOT Act.

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Federal agencies use NSLs to demand disclosure of certain records from an organization; they are a form of administrative subpoena that can be issued without judicial review.[8] The number of NSLs drastically increased after the Act took effect. Supreme Court—raised serious questions about the Act’s constitutionality.

Yet today the Act’s provisions can also impede domestic terrorist organizations like the Animal Liberation Front (ALF) and Earth Liberation Front (ELF) by facilitating intelligence sharing for law enforcement purposes.

The ratchet effect can occur because it is challenging to repeal laws in democracies.

Posner and Vermeule call ratchet effect explanations “methodologically suspect.”[3] They note that accounts of the ratchet effect often ring hollow, for they “fail to supply an explanation of such a process…and if there is such a mechanism [to cause the ratchet effect], it is not clear that the resulting ratchet process is bad.”[4] I argue that the recent controversy surrounding the NSA’s intelligence collection efforts underscores the relevance of the ratchet effect to scholarly discussions of anti-terrorism laws.

I do not seek to prove or disprove that the recent NSA surveillance controversy illustrates the ratchet effect at work, nor do I debate the potential strength or weakness of the ratchet effect as an explanation for the staying power or growth of anti-terrorism laws.

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