Two Cheers for NSA Surveillance

Based on the response to member Monty Adams’ post this morning, it is evident that the piece I coauthored with Roger Pilon of the Cato Institute has struck a raw chord with many readers on Ricochet, just as it does with most of the members of the Cato Institute. So here is a bit of background to indicate what I think about the situation:

First, there is no categorical libertarian opposition to government programs that are intended to deal with the threat of force against people (both citizens and others) and property within the United States. Indeed, the reason why libertarians are not anarchists is because they accept that this is a legitimate state function, for which taxes can be raised and government protections installed under even the narrowest definition of the police power.

Second, the difficulty in this area does not come so much with the punishment of past acts, but with the commission of future ones. There is some evidentiary uncertainty with the former and massive uncertainty with the latter. The question is how to design a system of remedies that minimizes the sum of two errors: abusive enforcement and lax enforcement. There is no ironclad rule that says how this can be done. But there is a clear sense that only some middle course will work. This is not a case like the minimum wage law, where there is, in my view, no justification for government interference with competitive markets.

Third, when it comes to dealing with uncertainty, track records matter. New programs are fraught with risk. Established programs give more information as to whether the safeguards in place are strong enough to hold.

In this context, it is not sufficient to note that the government has been abusive with both the IRS and reporters. Both those points seem quite true, but they take place within parts of the government that are not organized to control against these risks. One of the great achievements of the military community is that it internalizes the norms against abuse in ways in which other government agencies do not. That is true in connection with the military trials of persons in custody for terrorist activities, and also in the general culture of civilian control. 

The executive branch is more than just the President and his cronies. The set of institutions that preceded them–and which will outlast them–seem to have performed well. Even Edward Snowden makes only the most generalized claims of excessive spying.  He does not show any violations of privacy norms by the military or the CIA. And he should be in a position to know.

Fourth, new evidence will change perceptions. I had more faith in the Obama position on drones before I learned about the signature strikes that targeted large numbers of individuals as opposed to discrete persons. That revelation altered the practice of the program.  If there is some massive misconduct along privacy lines here, someone, somewhere can reveal it–and it will provoke a massive and successful political response. None of use who defend the current program would remain indifferent to evidence of systematic invasions of privacy for private gain if they came to light.

Fifth, I believe that my views here are consistent with those that I have taken on takings generally. I have long been interested in Fourth Amendment law because of its affinity to takings questions. In fact, I just finished teaching it for the first time a few weeks ago. 

The simple point of comparison is this: ordinary zoning and regulation cases do not have a national security or anti-crime component to them, so, in situations like that, the balance should be struck much more in favor of private property rights. In those areas where there are potential torts (like pollution and nuisances) there is little deference to private action. Those are the cases that give the closest comparison here. 

There is nothing in the current body of Supreme Court law that ignores either side of the balance in national security and crime cases. I can critique individual cases, but that criticism bears little resemblance to the one appropriate in takings cases. Quite simply, the progressive defense of big government in economic regulation is not a flash point here. And with all the confusion, I still have not heard a credible claim that the current program (if carried out as described) is unconstitutional.

Sixth, the issue of trust is of course paramount, but it is on both sides of the issue.  If we don’t trust a system of overlapping controls for government surveillance, can we trust all private individuals to refrain from the use of force? Sure, there is doubt as to whether the government has misbehaved, but there is none on the question of whether terrorists misbehaved, which is why the presumption has to be set in favor of the government–even in an Obama Administration, whatever its misdeeds elsewhere.

  1. Skyler

    “The set of institutions that preceded them–and which will outlast them–seem to have performed well.”

    No, the IRS has not performed well.  I think this is a very weak argument.  Just because nothing has been abused (which is not true) then we should not fear future abuse?  No, we should always fear it.

    And why should the government get data for free that the rest of the country has to pay for?  Facebook provides a service to learn my every intimate life event.  

  2. DrewInWisconsin
    Richard Epstein:

    Sixth, the issue of trust is of course paramount, but it is on both sides of the issue.  If we don’t trust a system of overlapping controls for government surveillance, can we trust all private individuals to refrain from the use of force?

    This seems an Obama-style false choice between invasive government surveillance and no surveillance at all.

  3. BrentB67

    First, there is no categorical libertarian opposition to government programs that are intended to deal with the threat of force against people (both citizens and others) and property within the United States.

    I don’t think this position is inconsistent with libertarians, republicans, dems, Tea Party, etc.

    The question is what threat are the monitoring systems designed to deal with? If these programs were solely created and employed against non US Citizens, that is an appropriate use. Employing them against US Citizens without the concurrence of a public court is another matter that is not acceptable.

  4. BrentB67

    Dr. Epstein, Thank you for showing up and engaging the topic.

  5. Paul A. Rahe
    C

    Bless you for addressing this courageously, Richard. I have only one quibble. You say that the abuses “take place within parts of the government that are not organized to control against these risks.” But, in truth, the IRS is supposed to be organized to control against such risks.

    It does not help that James Clapper has no idea whom he works for — Barack Obama, or the American people. He lied to Congress about the scope of NSA surveillance just as he lies to the American people with regard to what happened in Benghazi.

    In the end, the problem is that we have an administration of scoundrels. No one has enough self-respect to be able to tell Obama: “No, I will not lie for you!” Let’s face it. When it came to Benghazi, even David Petraeus (initially) blinked. Scoundrels they are; time servers. Every last one of them.

  6. KC Mulville

    As Reagan said, Trust but verify.

    We can’t foolproof government. Government still depends on ordinary men acting honestly. But we have to be on constant watch.

    The whole plan behind the surveillance program is to anticipate wrongdoing before it happens … but ironically, that’s also what  critics of the program are doing. The government is trying to anticipate attacks, and so are the critics of government. 

    There is no one-size-fits-all, permanent fix. Stopping the surveillance may be necessary later, but until we can verify an actual abuse (rather than the possibility of abuse), I’m willing to  keep it going.

    That isn’t going to stop us from verifying. Stay alert.

  7. John Grant
    C

    The checks seem awfully weak. The court is a secret one, and the administration has lied to Congress with impunity.

    I may have missed your discussion of this, but it seems like the most obvious step to securing our rights against terrorism would be keeping terrorists out of the country. Libertarians seem absolutely uninterested in this, but now prominent libertarians are defending government collection of information from private entities with no probable cause and secret courts.

    But perhaps I missed your call for reviewing our asylum procedures or the revocation of the special privileges granted to Saudi Arabia under our current visa system.

    And, as I mentioned in another thread, mosques are granted special protections from information gathering under the current dispensation (since 2011).

    Tying this issue to national security would be more plausible if our ruling class showed some interest in actually securing our rights.

  8. Nick Stuart

    Our elite ruling class in government and academia (among whom Prof Epstein should surely be numbered) are striving vigorously to cram some very unpalatable things straight down the throat of the body politic. In broad strokes:

    • Obamacare

    • NSA Surveillance
    • Immigration “reform”
    • Firearms confiscation
    • Global warming
    • Wind and solar power
    • Publicly-funded abortion
    • An ever-expanding government at all levels
    • and more

    Of course not every individual is on the same side of every issue, but collectively are insisting “We know better than you, you need to do as we say.”

    However, the proletariat (who as individuals are also on every side of every issue) has collectively come to where they simply aren’t buying it.

    Prof Epstein wants us to believe that in contradistinction to the abusive mopes at the IRS, EPA, OSHA, EPA, DOJ, ATF, State and other departments and agencies of the government, NSA functionaries are sterling, incorruptible, Jack and Jill Armstrong all-American boys and girls who (Snowden excepted) would never, pinky-swear ever, abuse the confidence with which we have entrusted them. And that congress can be trusted to exercise meaningful oversight of NSA where they have proven totally incapable of exercising meaningful oversight anywhere else.

  9. Last Outpost on the Right

    We must take great care to distinguish between two very different questions:

    1. Did NSA do something that was illegal or unconstitutional?

    2. Are these actions – as we currently understand them – acceptable to the us, the American people?

    As to the first, the best answer I can give is to simply repeat whatever John Yoo says. No offense, Richard.

    The second is another matter entirely, and at least we are finally having a public debate about it … and one that is starting to filter into the attention span of the normal citizen.

    My personal view is that – between Facebook, Google search histories, an electronic paper trail that stretches as far as the eye can see – we can no longer have an expectation of transactional privacy. We can be watched in any number of ways. That they do this is simply an extension of the vigilance that good cops exercise. At some point, this power – just like all other power – will be abused. We should deal with the abuse of power by punishing the abusers, not by lowering our guard. – Jose

  10. Mendel

    What upsets me, from a libertarian perspective, about Prof. Epstein’s writings here and at Cato is the lack of a limiting principle about what invasions of privacy are or are not justified in the name of preventive national security.

    In the other article, he pays lip service to the Smith v Maryland decision, but I am not convinced that he sees the boundaries set by that judgment as being very solid from a policy perspective.

    Even if national security is the government’s main priority, libertarianism should exist to constantly ask the question “where does this government power end?”  if for no reason then because security hawks will always find a justification for a greater degree of surveillance and data collection.

  11. iDad
    Nick Stuart:

    Prof Epstein wants us to believe that in contradistinction to the abusive mopes at the IRS, EPA, OSHA, EPA, DOJ, ATF, State and other departments and agencies of the government, NSA functionaries are sterling, incorruptible, Jack and Jill Armstrong all-American boys and girls who (Snowden excepted) would never, pinky-swear ever, abuse the confidence with which we have entrusted them. And that congress can be trusted to exercise meaningful oversight of NSA where they have proven totally incapable of exercising meaningful oversight anywhere else. · 1 hour ago

    This.

  12. Barbara Kidder
    BrentB67

    First, there is no categorical libertarian opposition to government programs that are intended to deal with the threat of force against people (both citizens and others) and property within the United States.

    I don’t think this position is inconsistent with libertarians, republicans, dems, Tea Party, etc.

    The question is what threat are the monitoring systems designed to deal with? If these programs were solely created and employed against non US Citizens, that is an appropriate use. Employing them against US Citizens without the concurrence of a public court is another matter that is not acceptable. · 2 hours ago

    There is most definitely, “categorical libertarian opposition” to our government being the ‘Prosecutor’, ‘Judge’ and ‘Jury’ in this matter!

  13. Jager

    Under FISA the Attorney General has certain duties. The Department of Justice brings the application for the Warrant. I can not join your faith in a system that is dependent on Eric Holder and his chief lieutenants  acting in good faith. That they will be honest with the Court and with Congress. 

    I disagree that this can be separated from the Justice Department targeting journalists. Eric Holder signed a warrant for a wire tap and then told Congress he knew nothing about it (lying to Congress). The Warrant for James Rosen said that the reporter was a criminal and a flight risk. This was explained by stating the DOJ did not believe this they just had to put it in the warrant to get a judge to approve it (lying to the Court)

  14. Barbara Kidder

    For a well-reasoned argument  against (Mr. Epstein’s) support of NSA Surveillance,  I urge you to read Andrew Napolitano’s essay in today’s Washington Times entitled:  ’Liberty in a Shambles’.

    Then, come back and re-read this post.  

  15. BrentB67
    Barbara Kidder

    BrentB67

    First, there is no categorical libertarian opposition to government programs that are intended to deal with the threat of force against people (both citizens and others) and property within the United States.

    I don’t think this position is inconsistent with libertarians, republicans, dems, Tea Party, etc.

    The question is what threat are the monitoring systems designed to deal with? If these programs were solely created and employed against non US Citizens, that is an appropriate use. Employing them against US Citizens without the concurrence of a public court is another matter that is not acceptable. · 2 hours ago

    There is most definitely, “categorical libertarian opposition” to our government being the ‘Prosecutor’, ‘Judge’ and ‘Jury’ in this matter! · 16 minutes ago

    Barbara I am not a libertarian. Do libertarians care if our government does this sort of thing to foreign threats? I could care less. It is when our government turns the binoculars in house that I am frustrated.

  16. Barbara Kidder
    BrentB67

    Barbara Kidder

    BrentB67

    First, there is no categorical libertarian opposition to government programs that are intended to deal with the threat of force against people (both citizens and others) and property within the United States.

    I don’t think this position is inconsistent with libertarians, republicans, dems, Tea Party, etc.

    The question is what threat are the monitoring systems designed to deal with? If these programs were solely created and employed against non US Citizens, that is an appropriate use. Employing them against US Citizens without the concurrence of a public court is another matter that is not acceptable. · 2 hours ago

    There is most definitely, “categorical libertarian opposition” to our government being the ‘Prosecutor’, ‘Judge’ and ‘Jury’ in this matter! · 16 minutes ago

    Barbara I am not a libertarian. Do libertarians care if our government does this sort of thing to foreign threats? I could care less. It is when our government turns the binoculars in house that I am frustrated. · 0 minutes ago

    Agreed!

  17. iDad

    The claim that the programs defended by Epstein, et al resulted in the discovery of certain terrorist plots debunked:

    http://reason.com/archives/2013/06/13/zazi-headley-feinstein-nsa 

  18. Scott R
    iDad

    Nick Stuart:

    Prof Epstein wants us to believe that in contradistinction to the abusive mopes at the IRS, EPA, OSHA, EPA, DOJ, ATF, State and other departments and agencies of the government, NSA functionaries are sterling, incorruptible, Jack and Jill Armstrong all-American boys and girls who (Snowden excepted) would never, pinky-swear ever, abuse the confidence with which we have entrusted them. ……

    This.

    ???

    He neither said nor implied any such thing. He said only that they have a good track record for safeguarding, which they do, and he even allowed for the possibility of abuse despite the fine record: “None of us who defend the current program would remain indifferent to evidence of systematic invasions of privacy for private gain if they came to light.” Etc.

  19. Fake John Galt
    I am not a constitutional scholar so I am probably over looking the part of the constitution that allows the government to collect as much data as possible, in as many forms as possible, on as many people as possible (both citizen and non citizen), on the off chance that they may need it later to track down and prosecute a threat to the nation’s security either real or perceived, foreign or domestic. Can one of you learned gentlemen point me to this aspect of the constitution? As for “domestic terrorist”, these folks are being tried in civilian court as common criminals, this being the case the NSA should not be involved at all, much less their super secret data capturing and analyst programs.
  20. iDad
    Scott Reusser

    iDad

    Nick Stuart:

    Prof Epstein wants us to believe that in contradistinction to the abusive mopes at the IRS, EPA, OSHA, EPA, DOJ, ATF, State and other departments and agencies of the government, NSA functionaries are sterling, incorruptible, Jack and Jill Armstrong all-American boys and girls who (Snowden excepted) would never, pinky-swear ever, abuse the confidence with which we have entrusted them. ……

    This.

    He neither said nor implied any such thing. He said only that they have a good track record for safeguarding, which they do, and he even allowed for the possibility of abuse despite the fine record: “None of us who defend the current program would remain indifferent to evidence of systematic invasions of privacy for private gain if they came to light.” Etc. · 11 hours ago

    “I know not what course others may take.  But as for me, give me an absence of evidence of systematic invasions of privacy for private gain, or give me a cessation of indfference!”

    Magnificent.