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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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This objection wrongly reads the specificity required for warrants into the general prohibition against unreasonable searches and seizures. It is like saying that police must obtain particular warrants before pointing radar guns at traffic, because otherwise the surveillance is too general, and therefore “unreasonable.” This is the same confusion that reigned at the outset of the FISA reform effort, eliding the critical distinction between detection and investigation. Detection is the necessary precursor to an investigation of any particular terrorist pursuant to any sort of warrant. It is necessary in order to develop reasonable suspicion in the first place.

The NSA surveillance is not like the IRS’s targeting of conservative groups, as some critics have argued. In the case of the IRS, there are two serious problems: First, the law allows the casual collection of massive amounts of private information on U.S. persons without a warrant; and second, few institutional safeguards protect against abuse by politically motivated officials. In the case of NSA surveillance, by contrast, it is hard to argue convincingly either that the law is too broad or that officials overstepped their bounds.

This latest assault on America’s counterterror capabilities will hopefully soon recede, leaving our current legal regime none the worse for wear. But there are reasons to worry. Snowden is apparently travelling with four laptops full of classified information. Worse, the president, in his desire to defend his national security policies, may be tempted to reveal more than is prudent in responding to critics. And the increasing public willingness to extend “whistleblower” legitimacy  

to leakers of government secrets could presage a tsunami of security breaches in the months and years ahead.

Addressing the NSA scandals before his trip to the G-8 summit, President Obama said, “If people can’t trust not only the executive branch but also don’t trust Congress, and don’t trust federal judges, to make sure that we’re abiding by the Constitution with due process and rule of law, then we’re going to have some problems here.” Perhaps if he’d given his predecessor more benefit of the doubt on that score, he’d be in a better position to ask for it now. Still, his broader point is inescapably correct. Our system of government is predicated on the idea that because leaders can’t always be trusted, the people must be able to place their trust in properly functioning institutions. The difficult question here is whether our institutions have functioned properly, and the most sober answer is yes.

We live in a dangerous world. It is not enough to protect our liberties from the power of government. They must also be protected by the power of government, from the many enemies who would do us harm. Sensible defenders of civil liberties understand that trade-offs of this sort are both necessary and messy. It is incumbent on us to avoid the allure of treating privacy as an absolute value, on our way to advocating policies that could put us all in danger.

Mario Loyola is former counsel for foreign and defense policy to the Senate Republican Policy Committee and senior fellow at the Texas Public Policy Foundation. Richard A. Epstein is Laurence A. Tisch professor of law at the New York University School of Law, Peter and Kirsten Bedford senior fellow at the Hoover Institution, and senior lecturer at the University of Chicago Law School.

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