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Libertarians of La Mancha

Objections to NSA surveillance are too often ­fanciful.

Jul 8, 2013, Vol. 18, No. 41 • By MARIO LOYOLA and RICHARD A. EPSTEIN
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The political tables have turned almost 180 degrees. President Obama uneasily defends surveillance programs of the National Security Agency, while his liberal and libertarian opponents accuse him of lawlessly abusing his powers. The spectacle might even be entertaining, were it not for its worrisome implications. Republicans, the most reliable constituency for the surveillance policies that have protected the nation since September 11, are starting to walk away from them.

Gary Locke

Gary Locke

Senator Rand Paul recently crowed that Edward Snowden, the NSA leaker now on the lam, will go down as “an advocate of privacy.” His father, former GOP congressman Ron Paul, declared that “we should be thankful” for the “great service” Snowden did in “exposing the truth about what our government is doing in secret.” Rank-and-file Republicans in the House have filed a bill to further stifle NSA surveillance, and Tea Party favorite Mike Lee is leading a similar effort in the Senate. At the libertarian Cato Institute (where Epstein is an adjunct scholar), privacy champions have assailed the “authoritarian measures that are advanced by the military, intelligence, and law enforcement agencies.” These voices could inadvertently weaken support for national security programs to a dangerous degree.

What a difference five years makes. When, in 2008, a Democratic Congress voted to enshrine President George W. Bush’s Terrorist Surveillance Program in the FISA Reform Act of 2008, virtually all opposition came from the left. Senator Jay Rockefeller, the bill’s principal drafter, bent over backwards to accommodate the objections of liberal Democrats such as Russ Feingold, Chris Dodd, and Ron Wyden. Yet with every revision, liberal senators pressed ever-more unreasonable objections, until it became obvious to Rockefeller that no matter how many civil liberties safeguards the law contained, die-hard liberals would oppose it.

What emerged from these compromises was a bill that, if anything, has unduly restricted the ability of the government to detect potential terror plots. The bill severely limited the government’s authority to target
the communications of U.S. persons outside the United States, for the first time ever. It prohibited “reverse targeting,” the indirect targeting of U.S. persons’ communications via targeting the communications of known terrorists abroad. It also imposed extensive “minimization procedures” that require, among other things, the destruction of much potentially valuable information on U.S. persons, and anyone inside the United States, even before intelligence officials can determine its value. Enormous resources are diverted from actual surveillance to the required paperwork, which includes copious requests for FISA court orders, and reports and regular briefings to the judiciary and intelligence committees in Congress. Republican calls to fix FISA’s structural flaws, principally its outdated distinction between “wire” and “radio” communications, were ignored.

In retrospect, these compromises were worth the trouble because they garnered firm bipartisan support. The great controversy that raged during Bush’s second term died down. Sobriety won out over overwrought civil liberties concerns, and the vital national security policies of the post-9/11 world became settled institutions.

Then came the leak of highly classified NSA surveillance programs, and suddenly the debate was raging again. It was now Obama’s turn to defend programs that he had previously excoriated Republicans for. Daily security briefings appear to have changed his views.

The Snowden leak has so far involved two distinct programs. The first is the collection of phone records metadata under FISA Section 501 (Section 215 of the Patriot Act). The second is PRISM, which targets the Internet usage of specific foreigners abroad under FISA Section 702, the operative vestige of the Terrorist Surveillance Program. In both cases, the most serious legal and constitutional objections have been exaggerated.

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