For a supposedly “libertarian” organization, CATO sure does find itself defending the State fairly often. Coming off a piece from a couple months ago defending universal background checks for gun purchases, now CATO’s Roger Pilon and Richard A. Epstein have joined forces (apparently it takes two faux libertarians) to defend NSA surveillance of Americans. It’s not hard to see how CATO has earned the nickname “STATO” in more hardcore libertarian circles.
Pilon and Epstein start off by assuring everyone that the secret NSA surveillance program recently revealed by whistleblower Ed Snowden is perfectly legal (and therefore fine and dandy!):
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.
Indeed, one of the more frightening aspects of this program is that it indeed may be “legal” under the PATRIOT Act. Of course, a law is never really “legal” when it is in direct conflict with the Constitution, and Patriot Act or no Patriot Act, the NSA spying on the phone calls and digital communications of Americans is clearly being done without probable cause, in clear violation of the Fourth Amendment. But fear not, the program has the “continued support” of all three branches of government!
After glossing over the Obama administration’s various scandals (he’d be on “stronger ground” if it weren’t for those pesky scandals you see), this dynamic duo goes on to use the Fourth Amendment to defend the spying program!
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.
Pilon and Epstein are half right. The basic function of government, under the Constitution, is indeed to protect the liberty of its citizens. Period. There is nothing about violating the liberty of the citizens if the government deems it “necessary”. When referring to searches under the Fourth Amendment, they conveniently leave out that the Fourth Amendment does not allow for any searches – reasonable or “unreasonable” – without probable cause and a warrant. The NSA surveillance programs suck up massive amounts of data on American citizens – without probable cause, and without warrants.
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.
The fact that these two see recording phone calls and digital communications as on the “opposite pole” from “ransacking a single person’s sensitive papers for political purposes” says it all about how they view government. They defer to the decisions of judges, Congress and the executive branch in determining just what is in the “public interest” for purposes of “national security”.
Libertarians (at least outside of CATO) don’t think in these collectivist terms. There is no “public interest”, only the interest of individuals. There is no such thing as “national security”, only the the security of the State.
They then compare the collection of this metadata to using a pen register to track telephone numbers, which the Supreme Court ruled to be Constitutional in the 1979 case of Smith v. Maryland:
That’s just what the government is doing here on a grand scale. The metadata it examines in its effort to uncover suspicious patterns enables it to learn the numbers called, the locations of the parties, and the lengths of the calls. The government does not know — as some have charged — whether you’ve called your psychiatrist, lawyer or lover. The names linked to the phone numbers are not available to the government before a court grants a warrant on proof of probable cause, just as the Fourth Amendment requires. Indeed, once that warrant is granted to examine content, the content can be used only for national security issues, not even ordinary police work.
The “court” they are referring to in the case of NSA surveillance is the FISA court. As Glenn Greenwald has rightly pointed out, the FISA court is a secret court that is essentially a rubber stamp for government surveillance. For example last year 1,789 requests by the government to the FISA court (this could also be read as “requests by the government to the government”) were submitted. Any skeptical folks out there care to guess how many were approved? That’s right…1,789.
The idea that the content “can be used only for national security issues” is nonsense, and the case of Edward Snowden proves it. Snowden was by all accounts a relatively low level employee working for Booz Allen, a private contractor that helps the NSA with it’s data collection. The fact that he had the ability, as he has described, to digitally wiretap and spy on anyone shows how bogus this idea is. There is absolutely nothing preventing anyone granted the “authority” – which may include thousands upon thousands of private contractors – from accessing the data being collected on American citizens.
Only in the fairy tale faux libertarian world of Roger Pilon, Richard Epstein and the higher-ups at CATO that approve the publication of this piece do secret FISA courts and magic phrases like “trust in government” qualify as some sort of “safeguard”. They take us home with this doozy:
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.
Are you done holding your sides from laughing yet? If only us libertarians could find some sort of “pattern” of government abuse! Wherever would we start to look? Keep in mind this comes a mere five paragraphs after the authors themselves mention Benghazi, the IRS, and AP spying scandals – and that is all from the past few months! Do Pilon and Epstein really think that government has not displayed a “pattern” of abuse? And these are libertarians?
It’s true that due to the secrecy of this program, the critics cannot yet cite “a single case”. Seeing how Glenn Greenwald – who received the leaked information from Edward Snowden – is claiming to have a “list of NSA targets” and that there are “more significant revelations to come”, us critics may not have to wait too much longer.
If they keep up with their current pattern, the fine folks at CATO will be the first to stand up and remind us to keep things “in perspective” once again.
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