National Surveillance, the NSA, and Dodd-Frank

My good friend and fellow libertarian Professor Randy Barnett published a provocative column in the Wall Street Journal yesterday taking the position that the federal government’s creation of massive databases should be regarded as unconstitutional. Much of his argument pertains to the operation of the NSA program, but he also notes the Consumer Financial Protection Bureau’s efforts to create massive databases of vital credit information from consumers in the name of protecting them from financial institutions.

I strongly agree with Barnett that the activities of the CFPB should be viewed with great suspicion. This intrusive operation is inconsistent with any coherent libertarian view of the relationship between individuals and goverment. I think that I speak not only for myself but for millions of other individuals who do not want the CFPB messing around with my financial information under some wishy-washy, paternalist rationale. As best I can tell, most of the bureau’s interventions are foolish or worse. There is no legitimate social interest that is served by this activity. 

Also note that the collected data is not kept in a lockbox, but is directly available for inspection and use by government agents, without any safeguards for how it is used. I do not care whether the Congress approves of these actions — I think that they count as unreasonable searches and seizures and should be stopped forthwith. That judgment does not, of course, carry over to the broad class of “required records” that are needed to run, for example, a system of revenue collection. But the view that “We are doing this for your benefit, oh citizen” leaves me completely and totally cold.

Barnett and I disagree, however, on the matter of the NSA, on which I give the national security interest much more weight than he does. In the case of the NSA, the internal controls are far stronger than those with the CFPB. Also, unlike the CFPB, the NSA does vital national work that we cannot possibly do for ourselves. I shall not repeat here the arguments that I made first with Roger Pilon in the Chicago Tribune, nor those that I made with Mario Loyola in the Weekly Standard, nor indeed those that I advanced on Ricochet (here and here), except to say that it makes all the difference in the world whether the information is kept in a credible lockbox once collected, so that it may only be used by government officials on a showing of probable cause. 

Nonetheless, I hasten to add, as I said on the latest edition of Law Talk, that I was deeply disturbed to learn about some particulars of the FISA court that require urgent Congressional attention. I realize that it is highly dangerous to publish redacted versions of the court’s opinions, lest they contain information of value to the nation’s enemies. But it is precisely because that information cannot be easily accessed that extra care needs to be taken to make sure that those aspects of the program that can be made public operate in ways that are above suspicion. Here are some concerns that track a recent New York Times story by Eric Lichtblau on the question.

– First, the recent revelation that all appointees to the FISA Court are made by the Chief Justice of the Supreme Court is deeply troublesome because there is no reason to concentrate so much power in the hands of a single person on such a critical issue. Splitting the job so that two more justices also make appointments would be a simple reform that could go a long way.

– Second, it leaves me very uneasy that 10 of the 11 FISA court judges are Republicans. This is an issue where appearances matter and Democratic judges should be part of the system.

– Third, the expansion of the FISA court jurisdiction to such matters as cyberterrorism may well be warranted. But what is disturbing is that it is done by judicial opinions that are largely secret. There is no difficulty in having a public debate in Congress. I suspect this conversation could be taken up in a public forum without compromising any operational portion of the program.

– Fourth, it is unnerving to see the very high (99+ percent) rate of approvals on surveillance requests to the FISA court. That could well be justified, but the optics are bad when there is no advocate for the other side that is brought into the process. There is no need to let private parties in, but government agencies should have a permanent staff whose charge is to argue against some of the warrants on questions of scope. It could be that all is well. But there is no harm in finding out for certain.

Where I take strong exception to Barnett’s position on the NSA is in this proposition from his piece:

With the NSA’s surveillance program, the Foreign Intelligence Surveillance Court has apparently secretly approved the blanket seizure of data on every American so this “metadata” can later provide the probable cause for a particular search. Such indiscriminate data seizures are the epitome of “unreasonable,” akin to the “general warrants” issued by the Crown to authorize searches of Colonial Americans.

In principle, I think that the comparison to general warrants from the colonial era is way off base. As Barnett notes, the early cases allowed damage actions against unreasonable searches and seizures, for in cases like Entick v. Carrington in 1765, government agents did indeed trash private homes. But the reason why damages fell out of style was because most searches did not cause that kind of damage. Assuming that surveilled data is kept under lock and key, the greater danger would be for that data to be unavailable when some serious national security danger arises.

I think that extraordinary care is needed to make sure that these programs operate as advertised, which is why the recent information about the FISA Court raises concern. At its core, however, the NSA program is well designed. The real tragedy here is that serious mistakes on fixable matters could undermine the credibility of a program that should be reformed, not scrapped.

  1. HVTs

    Devereaux,

    You appear to make no distinction  between law enforcement and national security. Yes, as you say, gangsters have rights. But if you mean what I think you do by the word, gangsters don’t fly planes into skyscrapers and kill people solely for political purposes. They aren’t trying to acquire nuclear weapons in order to blow up US cities.  They don’t plant nail bombs at the Boston Marathon. The Communists you refer to controlled nation-states. They had a return address, so to speak, and identifiable Armed Forces consisting of combatants in proper uniforms.  None of that applies to al Qaeda or its affiliates around the globe. 

    We either adapt to the reality of who our adversaries are and how they operate or Americans die horrible deaths.  That was the lesson of 9-11.  It takes aggressive, comprehensive intelligence collection and analysis to drive successful counter-terrorism operations.  We have safeguards in place, as the Professor details above (along with very sensible ways to strengthen transparency and our confidence in the process).  But in the end (and I don’t know who said it first, but he was right) the Constitution is not a suicide pact.

  2. Skyler

    HVT, I think you have learned the wrong lesson. Why would a nation state risk it’s existence by openly declaring its intent to attack us when they can do so through non governmental proxies? The correct lesson, which we seem reluctant to learn, is that we need to hold the people of the countries that sponsor terrorists responsible. They are the only ones that can fix the problem. The terrorists can continue hiding among the people. The governments will continue to stay in power unless the people feel the pain associated with waging war against us. Why should the people of Iran, for instance, overthrow the mullahs? The mullahs threaten us and not them. If we were to attack Iran the people of Iran know they will be safe and we will feed them and give them money. If they oppose the mullahs they will be imprisoned or killed. That is why terrorism is able to threaten us. Our reaction to curtail our own freedoms does nothing to stop terrorism. There will always be another way for a dtermined enemy to attack us unless we destroy them.

  3. Devereaux

    Seems to me, Professor, that you are proposing that it would be fine to have wire-tapped ALL the alleged crooks, gangs, etc, evaluate the data, then go for those parts that you think would be helpful.

    No one likes gangsters. But they, too, have rights. And Americans have them also. I wish to see the government doingold fashioned police work. For 50 years we were in constant threat from the communists, at one time even potentially at risk for a first strike from them. Yet we never thought that we should collect all American data, phone conversations, etc, – “just in case”.

    The fact of the matter is that not allowing them to do thiswould restrict my government some. But Iwant my government restricted, and working harder to accomplish the necessary work.

    ?Is that so much to ask.

  4. Skyler

    Oh. I see. There is a “lock box” involved. Giggle!

  5. HVTs

    Skyler – 

    You think the answer is to start yet another war in the Middle East … to add Iran to Iraq and Afghanistan? On the strength of those two brilliant foreign policy triumphs, let’s take on Tehran?  Have you noticed the number of dead Americans from 12 years of war? The number of missing limbs? Noticed our national debt recently?  And this accomplished … ?

    As for holding those harboring terrorists accountable, how about some 350 drone strikes in Pakistan?  That’s the same country we pumped $1.7B into … in 2011 alone.  Has that achieved victory in Afghanistan?  

    OBTW – the last country we thought would welcome us as you think Iranians will? That was Iraq.  How’d that work out again? Oh yeah, we got bogged down with hundreds of casualties a month and had to “surge” our way to a stalemate.

    No, I don’t think it’s me who has learned the wrong lessons.

    Finally, tell me what we should do about threats like that posed by the Tsarneav brothers?  As I understand the logic of your position, we shouldn’t listen in on their phone calls but instead bomb Russia after the fact.

    (Edited inaccurate # drone strikes.)

  6. Devereaux

    HVT – there is no distinction between law enforcement and national security. If we give in to the myth that our rights can be taken for the sake of “national security” you essentially have no country left.

    Note what all the current federal government does by twisting what were plain words. We have gun control laws of various types, mostly abridging out right to KBA. We have laws on what kind of light bulbs we can buy based on “general welfare”. Now you wish to introduce “national security” as yet another reason that the government can trample upon us.

    I am totally skeptical of any “transparency” or other “safeguards” when it comes to my rights. Doesn’t matter whether it’s in the name of crime or national security.

    And there are lots of other ways to accomplish the same goal. Old fashioned police work does wonders. Indeed, I would suggest that there have been few if any results that could be directly attributed to this general data scarf. Very much like the TSA has done nothing to promote our “safety” than just irritate us.

  7. Skarv

    Technology advances are rapidly changing what is possible to do. Not long ago there would have been “safety in the numbers” as it was not practically possible to analyze e.g. meta-data from all phone calls. This is rapidly becoming untrue. And if we combine spending and communication patterns we can probably tell a lot about an individual without any manual eavesdropping.

    Data that is collected will sooner or later be used. So it is better to prevent misuse by stopping collection but that is also getting more difficult as it is so easy to collect and increasing more and more economical. This is not an easy problem as ultimately as both private and government operators can collect much more data and analyze it much easier than they ever could before.

  8. HVTs
    Devereaux: HVT – there is no distinction between law enforcement and national security. If we give in to the myth that our rights can be taken for the sake of “national security” you essentially have no country left.

    I think I understand the passion from whence your views emanate. Thankfully, however, the Founders weren’t so blinkered. If there is no distinction between law enforcement and national security, how are we to understand, inter alia, the Fifth Amendment? Would you have us Mirandize those we encounter on the battlefield?

    BTW – Even ignoring the hyperbole (much as I think them a joke, certainly TSA has done some good) TSA’s failings do not make an argument for letting DOJ run our next military campaign.

  9. Skyler
    HVTs: Skyler – 

    You think the answer is to start yet another war in the Middle East … to add Iran to Iraq and Afghanistan? 

    I’m not saying we should start another war, I was giving an example using a potential enemy.

    Drone strikes are ineffective.   Brute force and massive occupation is what was needed in Iraq and Afghanistan.  We invaded all of Afghanistan initially with two battalions!  We should have used 400,000 men.  The biggest weakness of the US military power is the support of our people.  We should never wage war that is not total war and we should always aim to end it quickly.  Kinder, gentler wars don’t work.

    There is no way to prevent an attack like the Boston Marathon bombing.  They are only effective if we lose faith in our government’s ability to keep us safe.  Enemies stop using them if we eradicate the ideology of those who would use them.  The answer to terrorism is to wipe out fanatical Islam, and only allow muslims to exist that wish to live in peace.  There are many such muslims, but why should they speak up if they don’t have consequences for their silence?

  10. HVTs
    Skyler

    … We invaded all of Afghanistan initially with two battalions!  We should have used 400,000 men.  

    The answer to terrorism is to wipe out fanatical Islam, and only allow muslims to exist that wish to live in peace.

    I think you are becoming unhinged … or you are a troll. But just for giggles, how exactly would you “wipe out” 100 million people?  That’s the number which reflects the roughly 10% of the world’s 1 billion Muslims who favor violent extremism on behalf of jihad.  Just nuke’em? 

    The number of troops needed depends upon the mission assigned.  Two battalions (plus SF/CIA) was more than enough to topple the Taliban.  Then we expanded the mission to vague and ill-suited “nation building.” For that, I think probably twice the number you suggest would be required … plus twenty to thirty years of effort.  We are not capable of that sort of sustained effort.

    Do you really believe the Boston attack could not have been prevented?  We had specific, credible intelligence on one Tsarnaev.  That we failed does not mean we can only fail.

  11. HVTs
    Devereaux: – we aren’t talking the battlefield, we’re talking HERE, and American citizens.

    The point is, “HERE” is where  the battlefield is — along with lots of other places around the globe, the enemy has proven quite able to bring the fight right here, to our doorstep.  But save for a few caves on the AF-PAK border, he has no doorstep.  To deal with this reality and that sort of asymmetry requires a prodigious intelligence effort, one that cannot be constrained by 18th century notions of foreign and domestic, civilian and military.

    I’m not saying therefore we toss out civil liberties (as, say, Lincoln did during the Civil War and Wilson did during WWI) … just suggesting that we must find an accommodation to these new realities if we are adequately to defend ourselves.

    Prof. Epstein is providing useful distinctions and offering useful ideas in that regard.  We fail to listen to men like him only at our own peril.

  12. Skyler
    HVTs

     Two battalions (plus SF/CIA) was more than enough to topple the Taliban.  

    Do you really believe the Boston attack could not have been prevented?  

    Two battalions and a bunch of hired mercenaries were enough to allow Al Qaeda to escape to Pakistan along with bin Laden.  Mercenaries are always a bad answer, history shows it again and again.

    Yes, we could have prevented the Boston Marathon bombing had we done certain very specific acts, but then they would find another chink in the armor.  There is no way to prevent all such attacks perpetually.

    And yes, we need to eliminate fanatical Islam.  Not all of Islam.  Just the fanatical fringe.  That is the source of our danger and that should be our goal.  Start by destroying governments that support them and making the people feel pain for it.  It must be predictable to such people that if they support fanatics that they will die or suffer, giving them a reason to resist such people in their midst.  Now they have no reason to resist them because the fanatics will behead them. They need to know that they will suffer from us as well and more completely.

  13. Devereaux

    HVT – we aren’t talking the battlefield, we’re talking HERE, and American citizens. There is in the constitution a very clear distinction between foreign affairs and internal or national affairs. And the FF’s were VERY protective of citizens FROM the government.

    The philosophical argument on spying on the people is no different that going through their homes – if by outside mechanism. There has been a ruling against the government using mobile x-ray machines to “scan” cars and homes – for no particular reason nor with any probable cause. This strikes me as no real difference.

    Police work is not hard – it’s mostly work. You have to think, look at evidence, talk to people, examine evidence, etc. If there is a national security issue (other than the FBI entrapping people with a variety of plans to blow up this or that), it is one that is amenable to all the old police work. You just have to DO them.

    The TSA has never caught a terrorist – never. ?How much to they cost us – in gold, time, harrassment. We are not to take even nailfiles with us. Meanwhile the TSA has sold the various small “knives” (contd)

  14. Devereaux

    (cont’d) on the internet – by the pound! So we have been deprived of our property for no rational reason. We have been disarmed in a public place. The recent SF crash had numerous people trapped in their seats – because no one had a knife! I usually carry a pocket knife every day. But there people stayed trapped until someone could be found with a box cutter. Meanwhile the TSA costs us something like $18 billion per year. Not to mention the “glory” of taking off our shoes.

    This thread, if I understand it correctly, has Prof. Epstein claiming that the government isn’t to be trusted to gather information if it’s for economic reasons, but is to be trusted if it’s for alleged national security, the definition of which is nebulous at best. I simply don’t see the distinction. Dragnets are wrong, period.

  15. HVTs
    Skyler

    Yes, we could have prevented the Boston Marathon bombing … but then they would find another chink in the armor.  There is no way to prevent all such attacks perpetually.

    … we need to eliminate the fanatical fringe. … They need to know that they will suffer from us as well and more completely.

    You harbor extremes of fatalism and all-out annihilation. On the one hand, the logic seems to be “I can’t prevent all attacks for all time, so let’s not bother preventing the attacks we can.”  And while we’re not preventing attacks at home, let’s “destroy” any and all governments that don’t conform to our will by suppressing their radicals.

    Just on its own terms, do you not see a problem here?  Pounding away on ‘them’ overseas, but leaving ourselves vulnerable at home . . . if you were ‘them’ might you not begin focusing even more on our homeland?

    What happens if it turns out Muslims are like Germans, like the Japanese?  It was eight days after Hitler put a bullet through his head before the Germans stopped fighting.  It took two nukes to get the Japanese to stop.  Is this the right vision going forward?

  16. Devereaux
    HVTs

    You harbor extremes of fatalism and all-out annihilation. On the one hand, the logic seems to be “I can’t prevent all attacks for all time, so let’s not bother preventing the attacks we can.”  And while we’re not preventing attacks at home, let’s “destroy” any and all governments that don’t conform to our will by suppressing their radicals.

    I don’t propose nihilism, but instead that the NSA version of spying shouldn’t be done on American citizens. In the Tsarnov, it was of no help. Had police actually donepolice work here, they could have justified a REAL wiretap, etc. with a regular court, collected what they needed, and arrested those two. Or at least watched them more closely.

    Somehow we have listened to the government, and Prof. Epstein, argue that general dragnet collection of data on citizens is OK – because it’s for “national defense”. I simply don’t buy that. We dragnet people at the airports and it gets us nothing for our $18 Billion. In the case of Fisal (?sp) in NYC they even had his name and picture – and passed him through. Took the NYPD to arrest him.