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

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.