Epstein: "Whither NSA Surveillance"

Whither NSA Surveillance: A Response to Cato's Julian Sanchez and Tim Lynch
Richard A. Epstein
Ricochet.com
June 19, 2013

On June 12, Roger Pilon and I published an op-ed in the Chicago Tribune that defended the constitutionality and, in large measure, the wisdom of the NSA's anti-terrorist surveillance program. Our position was, and remains, that it is idle to insist that libertarian concerns with limited government are a knock-out punch against the continued operation of such a program.

It is, of course, permissible and perhaps even advisable to take the line that the size of this program has grown out of proportion relative to any underlying security threat, as was done recently by Robert Higgs when he asked in a powerful post on the Ludwig von Mises Institute website, "Why This Gigantic “intelligence” Apparatus?" There is doubtless some who would contend that the $75 billion intelligence budget only looks to be disproportionately large because its success has driven terrorists into the wings. But my guess is that much of this cost (especially in connection with the bank financial reporting requirements under the Patriot Act) is wasteful. Some pruning seems in order. But to decide how much is appropriate there is no substitute for the very imperfect process of democratic deliberations. Those deliberations will only work if undertaken by individuals who are sensitive to the many necessary trade-offs between liberty and security.

I am very reluctant to voice strong opinions on that mix because I have no inside knowledge that would allow for informed judgment on the issue. I don’t have a similar reluctance, however, to address the legal and philosophical issues surrounding that aggressive surveillance program in regard to both ends and means. I see no issue with the validity of the ends of surveillance. Protecting the public against the use of force and fraud is the paramount end of government, which does not disappear simply because that elusive threat comes from unknown quarters. The amorphous nature of the threat requires extensive surveillance until we can identify responsible parties against whom direct action can be taken. As Paul F. deLespinasse urged in a thoughtful op-ed in The Oregonian, it makes no sense to limit  metadata searches to known suspects when unknown suspects may well pose the central danger. Therefore, the correct approach is to cast the net wide by tracing connections, invoking more intrusive searches only when justified by concrete evidence. Exactly how that progression takes place is a matter for honest debate. But curtailing or eliminating general surveillance for abstract concerns about abuse is a dangerous, if not reckless, approach.

Faculty: 
Richard A. Epstein