Two Cheers for NSA Surveillance

Richard Epstein

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 massiveuncertainty 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.