William Kristol is promoting at the Weekly Standard an article by “two of America’s leading libertarian legal thinkers, “no friends to intrusive government,” to support Kristol’s assertion that the National Security Agency mass secret spying program is a “legitimate use of government power to protect the nation from our enemies abroad.”
The defense of the NSA program by these two authors is of particular note because of the authors’ affiliation with the Cato Institute that describes itself as “dedicated to the principles of individual liberty, limited government, free markets and peace” and having a “strict respect for civil liberties and skepticism about the benefits of both the welfare state and foreign military adventurism.” The authors’ article is providing valuable cover for the advocates of the mass spying program.
The authors of the article Kristol is promoting are Cato Institute Center for Constitutional Studies President Roger Pilon and Cato Institute Adjunct Scholar Richard A. Epstein who wrote an attempted sweeping exculpation of the National Security Agency (NSA) and all the branches of the US government for the NSA’s mass spying on phone calls. Here is a portion of the authors’ defense:
“Legally, the president is on secure footing under the Patriot Act, which Congress passed shortly after 9/11 and has since reauthorized by large bipartisan majorities. As he stressed, the program has enjoyed the continued support of all three branches of the federal government. It has been free of political abuse since its inception. And as he rightly added, this nation has real problems if its people, at least here, can’t trust the combined actions of the executive branch and the Congress, backstopped by federal judges sworn to protect our individual liberties secured by the Bill of Rights.”
President Obama’s conclusion, as characterized approvingly by the authors, is the exact opposite of the conclusion warranted. The United States has real problems if Americans do not question and challenge US government actions. Pointing to the agreement of the US government’s three branches on a program and the reauthorizing of the PATRIOT Act by large bipartisan congressional majorities are an illogical defense. First, the defense lacks basis given that the secrecy of the spying has prevented courts from deciding cases challenging the spying. Second, the three branches of the US government have agreed plenty of times on bad programs; the popularity of a government program among a group of politicians is not determinative of the program’s merit.
The suggestion that the spying has been free of “political abuse” is particularly bizarre. The nature of the mass spying is itself an abuse by the government of people’s privacy. But, maybe the authors mean by “political abuse” the use of the the spying to benefit or harm a particular political party or candidate, or to treat people differently based on their political views. If that is what the authors mean, how do they have the information to know there has been no political abuse? In a secret multibillion-dollars-a-year program the logical assumption would be that somewhere, somehow the program has been used for that kind of political abuse. Indeed, it would be expected that the secrecy of the program would embolden some people to use it for such purposes.
The authors proceed with the following history of the PATRIOT Act:
“That deference is especially appropriate now that Congress, through the Patriot Act, has set a delicate balance that enables the executive branch to carry out its basic duty to protect us from another 9/11 while respecting our privacy as much as possible. Obviously, reasonable people can have reasonable differences over how that balance is struck. But on this question, political deliberation has done its job, because everyone on both sides of the aisle is seeking the right constitutional balance.”
Reality is much messier. Many people on “both sides of the aisle” were not seeking the right constitutional balance, and the PATRIOT Act does not set up a “delicate balance… respecting our privacy as much as possible.”
For an analysis of these issues that seems more in line with the espoused principles of the Cato Institute (and is not being promoted by William Kristol), check out this article by Jim Harper, the director of Information Policy Studies at the Cato Institute.
