Ordered Liberty

The WHY Question — Why the National-Security Right Is Gradually Losing the NSA Debate

An amendment proposed by libertarian Congressman Justin Amash (R., MI) that would effectively have killed the NSA surveillance programs was just barely defeated last week. In the battle’s wake, a consensus seems to be growing that conservatives must have an intramural debate over national security. This is healthy, or at least it could be if we could stick to facts, law and policy. The discussion will not be advanced by trading barbs that libertarianism is a “dangerous thought”; that those justifiably worried about an abusive surveillance state are “isolationists” whose concerns are sheer “madness”; or that the national-security right has gone “statist.”

A better model for the debate was featured on the Blaze Monday morning: On his radio program, NSA naysayer Glenn Beck invited Congresswoman Michele Bachmann (R., MN), a staunch NSA defender, for a civil but spirited discussion about the program. Glenn and Michele are friends – of each other and, for what it’s worth, of mine. They began by conceding each other’s good faith in wanting what was best for the country in terms of the proper balance between liberty and security. Nevertheless, they disagreed sharply over the NSA’s collection of “metadata” (i.e., records, but not the content, of Americans’ phone and email communications), as well as the agency’s monitoring of the communications of hostile foreign agents situated outside the U.S. (an effort the libertarian side sees as a pretext for eavesdropping on the communications of Americans).

I am a proponent of the NSA programs, and a member of the national-security right who has long feared that our camp was frittering away its influence – by associating with the “Islamic democracy” experiment and by uncritically supporting some excessive investigative measures that stoked controversy while not improving security. Thus, it will come as no surprise that I believe Congresswoman Bachmann has the better of the argument. As Glenn conceded, Michele sits on the House Intelligence Committee; she is in a better position than are we who don’t to know both what the government is up to and what threats it is responding to. Still, Glenn illustrated weaknesses in the national security right’s case. If they are not shored up in a hurry, Amash & Co. will not be denied next time around.

On the plus side for the national-security right, Glenn appeared to acknowledge that, in the main, his concerns are about potential abuse. Michele maintained that she devotes a large chunk of her time to the intelligence committee’s work, has studied the NSA programs closely, and has found no pattern of abuse. As she explains, the NSA is collecting metadata, but – under statutory and court-imposed procedures – it does not peruse this data or identify particular people, absent a showing of reasonable suspicion to the court. The NSA is also recording the communications of foreign agents situated outside the U.S. – an effort that should not require court authorization at all but does under the 2008 amendment to the Foreign Intelligence Surveillance Act. There is no eavesdropping on U.S. citizens – at least not intentionally – unless the government obtains a judicial warrant based on a showing of probable cause that the target is acting as a foreign agent.

Glenn did not seem to dispute these safeguards or Michele’s earnestness in believing they’d been followed. But he posed two pointed questions:

(a) Why should we trust that the government will not abuse these programs – i.e., in light of the Obama administration’s track record of abusing executive authority, why should Michele, and the rest of us, trust what she is being told by NSA officials?

(b) If the government is really not spying on us, why does it need a massive amount of storage space in Utah – i.e., why is it going to the enormous effort and expense of storing information unless it is using it, or at least intends to use it?

These questions do not arise out of farfetched conspiracy theories but proven instances of executive branch abuse of power. I believe there is a very convincing answer on the first question. There may also be one on the second, but it has not been advanced as of yet – not compellingly. We on the national-security right are kidding ourselves if we think these programs can be sustained for much longer without winning the argument on these two points.

1. It’s not a matter of trust

On the question of why we should trust that surveillance powers will not be abused by an untrustworthy administration, two points must be made.

First, all power can be abused. The framers quite intentionally made the executive branch the repository of awesome power because they understood hostile outside forces would imperil our nation. No matter what safeguards are put in place, a corrupt president could make lots of mischief. Indeed, the NSA programs are child’s play compared to how a corrupt commander-in-chief could use control over the most powerful armed forces in human history to threaten the people’s liberties.

Yet, no one seems to be saying that we should scrap the military because Obama could theoretically try to impose martial law, or scrap the Justice Department and its chief component, the FBI, because they have the capability of trumping up prosecutions and engaging in massive domestic spying. Extreme examples? Perhaps … but I make them extreme to clarify the salient point: Even we conservatives who – like the framers – are suspicious of government and insist that it must be limited, recognize that it must be effective and powerful in carrying out those few duties necessary to maintain the order on which liberty depends. When we insist, for example, that our military must be capable of projecting overwhelming force, we know in the back of our minds that this force could theoretically be turned against us. It is a risk we accept, however, because (a) the overwhelming power is necessary to deter or defeat enemies who would otherwise destroy our liberties, and (b) we have checks in place that greatly reduce the chance that corrupt officials will abuse their power so thoroughly.

It proves too much to contend that the Obama administration, or for that matter any administration, could abuse its national security authorities. That is an argument for getting rid of every executive power.

That brings us to the second point: trust. National security powers are not constitutionally vested in the office of the president on the condition that we trust whoever happens to be the occupant of that office. They are vested unconditionally because they are necessary to protect our lives, liberty and property. If the occupant of the office proves himself unworthy to be so endowed, the remedy is to remove him from office, not to nullify the powers of the office. We need the powers – what we don’t need is him.

The framers were not so naïve as to give us a system that depends on trustworthy politicians (to say nothing of radicals). Instead, they wisely assumed that power is corruptive and thus gave us a system that relies on dividing and dispersing it.

Glenn repeatedly asked Michele why she trusts Obama officials to operate within the constitutional and statutory guidelines that govern the NSA program. But she does not trust them – she readily agreed with Glenn that they are not trustworthy. To focus on trust, though, is to focus on the wrong thing. The focus should instead be on separation of powers: Does the framework of program in question divide power so that it is not fully concentrated in the executive branch? Does it give the other branches the authority and motivation to check potential executive abuse?

The NSA program accomplishes both these objectives. The executive branch is permitted to gather and store information, but it must make an evidentiary showing of suspicion that satisfies the FISA court before it can scrutinize that information. And it must make multiple extensive reports to Congress each year. These layers of inter-branch oversight have resulted in the revelation of instances in which errors have been made and, for example, communications were intercepted that shouldn’t have been. The errors were duly reported to the court and Congress, and the executive branch was directed to purge the data. And there are other key limitations: the data is in a form that is comprehensible only to technically proficient intelligence professionals and only they are permitted to handle it – greatly minimizing the chance that it could be abused by political appointees; and the data must be destroyed after five years, with the other branches empowered to ensure compliance.

This makes the NSA program patently different from other administration schemes and scandals. The IRS targeting of conservative groups, for example, was a unilateral executive branch project – a bureaucracy run amok with no structural judicial and congressional oversight. The Benghazi massacre is precisely a case of the executive branch adopting reckless security policies for its own personnel, then lying and stonewalling when Congress attempted after-the-fact investigations.

Another good and truly alarming comparison is the Federal Data Hub, revealingly reported on by John Fund at National Review. Unlike the NSA program, whose extensive safeguards are designed to make data more difficult for the government to peruse, the FDH is an Obamacare enterprise in which reams of personal information about Americans, far more extensive than communications data, is amassed for the precise purpose of making it easy for government bureaucrats to access under the guise of improving health care. And, putting aside that national security is the ultimate federal responsibility while health care is something the federal government should have no part in, the FDH data will be handled not by technically proficient intelligence professionals, as in the NSA program, but by “patient navigators” who will require neither high school diplomas nor criminal background checks.

It is entirely understandable that libertarian-minded conservatives should distrust the Obama administration and resist endowing it with unnecessary additional powers. But the NSA programs are not new – they long predate Obama. And they are – the NSA, the administration, and informed members of Congress attest – highly effective efforts to map terror networks and prevent terrorist attacks. They do not ask us to trust the Obama administration. Indeed, the built-in layers of judicial and congressional oversight reflect the fact that the Congresses that first approved these programs were full of Democrats who deeply distrusted the Bush administration.

2. Why all the effort to collect information if it is not being used?

NSA program critics have consistently pressed the question of why our security requires the gathering of astounding amounts of data, well over 99 percent of which pertains to innocent people who have absolutely nothing to do, even inadvertently, with terrorism. In Monday morning’s discussion, Glenn cast the argument in a very persuasive appeal to common sense: Why would the government, at great effort and expense, create a cavernous data farm in Utah if the purpose were not to peruse the data? Surely we are not merely storing communications information just to destroy it, right?

To be blunt, the national security right’s response to this basic, entirely reasonable line of inquiry has not been effective.

In part, this is understandable. At issue is a highly classified intelligence program. Many of its defenders – very much including me – are not privy to the top-secret details of the effort. Those who are in the know have a dual quandary. As Glenn graciously took pains to point out, government officials like Michele who are read into the programs are duty-bound not to discuss even details that have leaked into the public domain. Even more significantly, to explain why the NSA needs to collect everyone’s information in order to detect terrorist activity is necessarily to provide a window into exactly what the NSA is doing. That, in turn, provides terrorists with a roadmap for developing effective countermeasures.

Because of this, most of the national-security right’s case has been devoted to the legal propriety of the program. After all, that is the part we know best, the ground on which we are most solid. A person has no Fourth Amendment protection regarding communications records that are the property of phone companies and other service providers. A non-American outside the U.S. has no constitutional protections at all. Therefore, the argument goes, what we’re doing is legal, so don’t worry about why (since why is too hard to discuss – see above).

This is very unsatisfying. First, the state of the law is widely unpopular, so being on the right side of it doesn’t help much. And for all their talk about being “constitutional conservatives,” libertarians are enamored of the progressives’ “organic” Constitution when it comes to the Fourth Amendment. They have swallowed whole the judicially invented “expectation of privacy” deviation from the original Fourth Amendment’s moorings in the concepts of personal property and trespass. If it were worth winning a legal argument rather than a policy debate, I might ask Glenn where exactly in the Fourth Amendment’s “right of the people to be secure in their persons, houses, papers, and effects” he finds phone records that are the property of third-party service providers and the communications of foreigners who are obviously not “the people.”

But as Governor Chris Christie might concede, this esoteric point does not get us NSA defenders very far. For better or worse, most Americans have internalized the “expectation of privacy” contrivance; they now believe the Constitution gives them enforceable privacy rights in the property of others if it reflects on aspects of their personal lives. More importantly, the Fourth Amendment was never the end of any privacy argument anyway. It merely defines the minimal ambit of privacy government must respect. It has never meant that there can be no supplemental privacy protections – just that such protections must be enacted by Congress (which is preferable to the having the courts make up a new Fourth Amendment as we go along).

So to say that the Fourth Amendment does not protect the data captured by the NSA programs is not to say that the data should not otherwise be protected. And, indeed, Congress has enacted protections, as discussed above: e.g., the government may collect liberally, but it may not inspect without judicial oversight.

Still, that does not answer the policy question the law cannot answer: Even assuming the government is permitted to collect this data, why does it need to do so – how does collecting massive amounts of innocent people’s communications information make us safer?

Furthermore, even the legal argument is on thin ice once you accept the premise that the “expectation of privacy” standard provides A with some inchoate Fourth Amendment interest in B’s property (where B is a private company keeping records of A’s activity). After all, the traditional Fourth Amendment logic is that government must develop evidence that gives rise to reasonable, particularized suspicion of wrongdoing before it may seize property. The NSA procedure, to the contrary, allows government to seize first and develop evidence later – with the proviso that there will be no search of what has been seized in the meantime. If we concede for argument’s sake that there is a liberty interest here, government seizure without individualized suspicion is not how the Constitution normally works.

Exceptions have been made for “special needs” – searches and seizures that are permitted without individualized suspicion in cases where government can show a compelling need other than gathering evidence for prosecution (e.g., drug testing in public schools). But that gets us straight back to the question: why do we need to do this? It remains unanswered in the minds of many people – very much including many conservatives who care deeply about national security but do not want to be snookered into ceding the government powers that have a very high potential for abuse with an apparently low – or even non-existent – return on security. Quite reasonably these conservatives ask: Why can’t you do what government has always done: develop evidence rising to reasonable suspicion or probable cause first, and then seize the data with court authorization?

I do not mean to suggest that there has been no effort to answer the why question. General Keith Alexander, the NSA chief for whom high esteem cuts across party and ideological lines, says that the program has been material to the prevention of several terrorist attacks. More concrete arguments have been made by Stewart Baker and Jim Carafano, who are extremely knowledgeable about how giant data collections can be mined in order, with minimal intrusion on the privacy of non-suspected persons, to detect unique terrorist communications patterns. The innocent communications are needed, they suggest, in order to make the guilty communications stand out.

General Alexander puts that contention this way: “You need the haystack to find the needle.” I confess to finding this analogy maddening. The hay is what makes the needle much harder to find; it doesn’t help people understand why collecting an ocean of data is useful to locating a few droplets of jihad. And I say that as a supporter of the NSA program who is convinced that its potential intrusion on my privacy is so trivial that if it can help stop another 9/11, it is well worth doing. But the president – the guy with the bully pulpit who purportedly believes the program is essential – is AWOL in this debate because his left-wing base is opposed to national security measures. So the burden of persuasion falls on the NSA chief. If his needle-in-the-haystack argument doesn’t move me, how is it possibly going to move people who are far more skeptical?

If there is a more convincing case to be made on the why question – why collecting huge amounts of data pertinent to innocent people is essential to detecting terrorist communication patterns – it must be made pronto. Again, reluctance on the part of knowledgeable people to say more than they have for fear of educating our enemies is perfectly understandable, even admirable. But national-security conservatives have to face facts: We are gradually losing this debate. Being right on the adequacy of the NSA programs’ structural safeguards, and being right on the law, will count for nothing if Americans are not convinced – quickly – that there is a real, material, comprehensible connection between the massive data collection and the prevention of terrorist attacks.

(Thumbnail on PJM homepage based on a modified Shutterstock.com image.)