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

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.