Roger Pilon and Richard Epstein are out with an op-ed that argues that the data-mining and surveillance programs we’ve become aware of over the past week aren’t really as big a deal as many libertarians and conservatives are making them out to be:
President Barack Obama is under harsh attack for stating the obvious: No amount of government ingenuity will guarantee the American people 100 percent security, 100 percent privacy and zero inconvenience. He was answering a burst of more heated responses from left and right alike to the “news” that for years the National Security Agency has been collecting metadata about Americans’ phone calls and certain foreign Internet communications.
Legally, the president is on secure footing under the Patriot Act, which Congress passed shortly after 9/11 and has since reauthorized by large bipartisan majorities. As he stressed, the program has enjoyed the continued support of all three branches of the federal government. It has been free of political abuse since its inception. And as he rightly added, this nation has real problems if its people, at least here, can’t trust the combined actions of the executive branch and the Congress, backstopped by federal judges sworn to protect our individual liberties secured by the Bill of Rights.
As a preliminary matter, I would tend to agree with Pilon and Epstein that the actions themselves are most likely perfectly acceptable under current law. Thanks to the PATRIOT Act, both as originally passed in 2001 and has it has been amended over the past twelve years, and the Foreign Intelligence Surveillance Act, which was just reauthorized by Congress last year, these kind of data-mining projects are in fact perfectly legal. In fact, this type of operation has been undertaken on a regular basis since at least 2005, if not longer. Congress reauthorized the PATRIOT Act after these practices had been reported in the press and did next to nothing to rein in the power of law enforcement to engage in these activities. So, notwithstanding the arguments made by people such as Congressman James Sensennbrenner (R-WI), the sad truth of the matter is that it does not appear that the National Security Agency (NSA) has engaged in any illegal activity unless there is more evidence out there that we haven’t seen yet.
The fact that something is authorized by law, though, does not end the discussion, it’s merely the beginning of the discussion. The PATRIOT Act, for example, is a deeply flawed law that was passed in incredible haste a mere six weeks after the September 11th attacks. There were limited hearings held on the bill in either chamber of Congress and the bill itself, going on for some 1,000 pages, ended up being more a shopping list of powers that law enforcement had been seeking for at least ten years before 9/11. The idea that this bill was a carefully thought out response to the the question of what would be needed to protect the nation from future terrorist attack simply doesn’t stand up to the evidence. Additionally, several measures of the law that were key to the NSA’s ability to do what we now know it did have not been fully tested in Court, although in all honesty it’s unlikely that Courts would strike these provisions down.
Legality, though, doesn’t end the matter. There are plenty of things that are legal that are improper, and plenty of examples from history of things that were authorized by law that were clearly wrong even at the time that they were done. Pilon and Epstein, though, take their argument a step further and argue that the NSA’s programs weren’t just legal, but they were also proper and, indeed, necessary:
In domestic and foreign affairs, the basic function of government is to protect our liberty, without unnecessarily violating that liberty in the process. The text of the Fourth Amendment grasps that essential trade-off by allowing searches, but not “unreasonable” ones. That instructive, albeit vague, accommodation has led courts to craft legal rules that, first, define what a search is and, second, indicate the circumstances under which one is justified. In the realm of foreign intelligence gathering, recognizing the need for secrecy and their own limitations, judges have shown an acute awareness of the strength of the public interest in national security. They have rightly deferred to Congress and the executive branch, allowing executive agencies to engage in the limited surveillance that lies at the opposite pole from ransacking a single person’s sensitive papers for political purposes.
That deference is especially appropriate now that Congress, through the Patriot Act, has set a delicate balance that enables the executive branch to carry out its basic duty to protect us from another 9/11 while respecting our privacy as much as possible. Obviously, reasonable people can have reasonable differences over how that balance is struck. But on this question, political deliberation has done its job, because everyone on both sides of the aisle is seeking the right constitutional balance.
The critics miss the forest for the trees. Yes, government officials might conceivably misuse some of the trillions of bits of metadata they examine using sophisticated algorithms. But one abuse is no pattern of abuses. And even one abuse is not likely to happen given the safeguards in place. The cumulative weight of the evidence attests to the soundness of the program. The critics would be more credible if they could identify a pattern of government abuses. But after 12 years of continuous practice, they can’t cite even a single case. We should be thankful that here, at least, government has done its job and done it well.
There are a boatload of assumptions set forth in this part of Pilon and Epstein’s argument. For one thing, how can we be sure that there have never been any abuses of the data-mining abilities that the NSA has if the program itself is completely secret? How can we be sure that the information has been used properly to further investigate matters if the courts that authorize those additional searches is itself secret and its ruling effectively cannot be appealed to a higher authority? The answer is that you cannot.
Reaching the conclusion that Pilon and Epstein do requires one to have faith that government officials and politicians, given this kind of power will not misuse it. Given how our government has acted in the past, it seems like a leap to make come to such a conclusion. It may well be the case that the NSA programs are entirely benign and have never been misused but, truly, how can we know that without guessing, and should we be making guesses like that when our fundamental liberties are involved? It’s pretty clear that we cannot. In making their argument, Pilon and Epstein place far too much faith in the government’s ability to do its job in this area without violating the rights of American citizens, and in the likelihood that the power granted will not be misused by those charged with exercising it.
On a final note, it’s with noting that both Pilon and Epstein are both affiliated in some way with the Cato Institute, without question the most pre-eminent libertarian public policy think tank in the country. Their piece, originally published in the Chicago Tribune, was also posted on Cato’s website. While it’s not fair to ascribe what they’ve written here with the organization as a whole, it is distressing that both of them, one of whom is director of Cato’s Center for Constitutional Studies, it does raise some concerns about the overall direction of the organization. I remain a fan of Cato even after this column, but I do have to say that it’s distressing to see this kind of anti-libertarian thinking infecting the nation’s premier libertarian think tank.