Whither NSA Surveillance: A Response to Cato's Julian Sanchez and Tim Lynch
On June 12, Roger Pilon and I published an op-ed in the Chicago Tribune that defended the constitutionality and, in large measure, the wisdom of the NSA's anti-terrorist surveillance program. Our position was, and remains, that it is idle to insist that libertarian concerns with limited government are a knock-out punch against the continued operation of such a program.
It is, of course, permissible and perhaps even advisable to take the line that the size of this program has grown out of proportion relative to any underlying security threat, as was done recently by Robert Higgs when he asked in a powerful post on the Ludwig von Mises Institute website, "Why This Gigantic “intelligence” Apparatus?" There is doubtless some who would contend that the $75 billion intelligence budget only looks to be disproportionately large because its success has driven terrorists into the wings. But my guess is that much of this cost (especially in connection with the bank financial reporting requirements under the Patriot Act) is wasteful. Some pruning seems in order. But to decide how much is appropriate there is no substitute for the very imperfect process of democratic deliberations. Those deliberations will only work if undertaken by individuals who are sensitive to the many necessary trade-offs between liberty and security.
I am very reluctant to voice strong opinions on that mix because I have no inside knowledge that would allow for informed judgment on the issue. I don’t have a similar reluctance, however, to address the legal and philosophical issues surrounding that aggressive surveillance program in regard to both ends and means. I see no issue with the validity of the ends of surveillance. Protecting the public against the use of force and fraud is the paramount end of government, which does not disappear simply because that elusive threat comes from unknown quarters. The amorphous nature of the threat requires extensive surveillance until we can identify responsible parties against whom direct action can be taken. As Paul F. deLespinasse urged in a thoughtful op-ed in The Oregonian, it makes no sense to limit metadata searches to known suspects when unknown suspects may well pose the central danger. Therefore, the correct approach is to cast the net wide by tracing connections, invoking more intrusive searches only when justified by concrete evidence. Exactly how that progression takes place is a matter for honest debate. But curtailing or eliminating general surveillance for abstract concerns about abuse is a dangerous, if not reckless, approach.
General Keith Alexander, Director of the NSA has just offered his most detailed defense of the surveillance program, which might help quiet at least some fears about its abuse. Nonetheless, the program continues to attract strident critics, including writers at the Cato Institute where I serve as an Adjunct Scholar. It is important therefore to make some brief responses to the recent posts on Cato@Liberty by Julian Sanchez and Tim Lynch.
First, the Sanchez post notes that the earlier op-ed that Roger Pilon and I wrote in the Chicago Tribune misspoke on some small points. There is, for example, no need to get a search warrant to get certain information about names and addresses, even though such is needed to examine the contents of phone calls. Also, information collected in foreign intelligence investigations can be used in domestic criminal investigations as well. Questions still remain, however, as to whether any of those powers offer an open avenue to general administrative abuse. In my judgment, that does not appear to be the case.
Sanchez is unable to cite any current evidence on this point, so he refers back to the earlier work of the Church Committee, which contains evidence of just that sort. But that Committee did its work in 1975-1976, which in turn led to the passage, in 1978, of the Foreign Intelligence Surveillance Act and the Foreign Intelligence Surveillance Court, which, in modified form, are still in place today. It clearly takes a huge leap of faith to think that the very institutional arrangements that Church advocated have had no effect on the level of abuse today. The natural inference goes in the other direction.
It is, of course, difficult to find out about abuses that wrongdoers in government want to keep quiet. But by the same token, NSA activities require extensive coordination with the government, as well as with telecommunications and high-tech companies who are not likely to share the same penchant for secrecy. Just recently, Google has petitioned the FISA court to lift restrictions on what it can say about its participation in the FISA process on First Amendment grounds. Whether this suit wins or loses is for the moment beside the point. At present, it is not credible, in the face of multiple explicit denials, to think that the situation looks anything like the pre-FISA days. Nor does Sanchez make a credible case that some originalist account of the Fourth Amendment invokes a balancing test. Here recall that the basic text states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Note that there is no clear linkage between the first and second clauses of the Fourth Amendment, and most modern readings try to establish that connection by holding that the first clause states the general rule, and that the second clause imposes limits on the kinds of warrants that can be issued once it is decided that a warrant is required in the first place. Sanchez takes a rather different view when he writes:
In other words, “unreasonableness” was not meant to invite the kind of “balancing test” so beloved by the modern Supreme Court—though as technology presents novel problems, some amount of that is, perhaps, inevitable. Rather, “unreasonableness” was specifically associated with the absence of particularity—of the kind exhibited by, for instance, an authority to indiscriminately collect all Americans’ phone records.
He is right to note that his interpretation has no support in current Supreme Court cases. Nor, in fact, does it have any support anywhere, for it makes the two clauses duplicative in requiring a particularity to undertake a search. Today, there are many cases involving, for example, ”exigent circumstances,” where searches and arrests can be made without a warrant precisely because of the risks that all too often arise in emergency situations. Indeed, the entire discussion of “Terry Stops,” which are allowed on the strength of “reasonable suspicion,” are a well established, if uneasy, portion of current American constitutional law. Nor is there the slightest suggestion anywhere that the uneasiness that the Supreme Court has in deciding what counts as “search” in individualized cases such as United States v. Jones, dealing with GPS devices attached to individual vehicles, has anything whatsoever to do with the kinds of surveillance involved in NSA activities. Warrants are easily obtainable for GPS searches. But the Court has never held the warrant requirement for general surveillance activities that never meet the probable cause standard. I believe that it never will reverse course on so fundamental an issue.
The second Cato response is prepared by Tim Lynch to my Ricochet post of June 14, which defended the earlier position that I had developed with Pilon. I confess that I find Lynch’s characterization of my position way off base. His initial point is that:
Epstein begins by waving off the track record of government abuse generally. Forget about the recent IRS scandal and the Associated Press wiretaps, he says, we must focus instead on the “parts of the government” that are organized to address terrorist activity. According to Epstein, those parts of the government “seem to have performed well.” Thus, he concludes, we should have confidence in the federal government’s efforts to stop terrorists.
Immediately thereafter, Lynch launches into a long indictment of the abuses of the FBI and the CIA, which I had, and have, no desire to defend. My remarks were much more focused, when I wrote:
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 claim here is not that the government will always act in the correct fashion. It is that a sensible person would take comfort in the positive achievements of government, and try to understand what accounts for the differential performance of government in given areas. Where there are individualized cases of abuse, punishment after the fact is appropriate. In those cases where the balance of interests runs in the opposite direction, the presumption should be set in the opposite direction. On this score, I served as a member of the Constitution Project’s Task Force on Detainee Treatment and joined its conclusion that there was powerful evidence of torture committed against detainees. But the key point here, as I argued recently on Hoover’s Defining Ideas, is that the trade-offs in the surveillance cases are quite different from those in the detention cases, where the individual claims are less pressing and the government justification far stronger.
In sum, the Lynch criticism would be ever so much more welcome if he had something constructive to say about how to alter the procedures in question. No one, least of all me, doubts that eternal vigilance is the price of liberty. Unfortunately, Lynch follows Sanchez in this one crucial respect: he is so intent on denouncing all that government has done in general that he offers no constructive advice on what actions could be done to make it operate better. That is the major challenge in this area. Fortunately, there is currently no evidence that the overall system is in dire need of repair. In fact, there is some credible evidence that it is not. Let us hope that putting the system in the spotlight will keep things that way.