Surveillance and Its Discontents

I have readers who don’t want to post comments who tell me that I have a ‘terrible bias’. I confess I do – like most people I know [although I suppose many have a ‘wonderful’ bias as compared to mine]. I tend to agree with the WSJ, but what I appreciate even more about the J is that they tend to be up-front with their opinions and state their case so discussion can ensue. America needs more of that.
In 1998, after Osama bin Laden orchestrated the bombings of U.S. embassies in Kenya and Tanzania, FBI agents were deployed to collect evidence so they could issue a warrant for his arrest. Twelve years later, Seal Team Six raided his Abbottabad compound, shot and killed him and his guards and then dumped his corpse into the sea.

The difference is that the U.S. is now waging a war on terror, and not a metaphorical war like LBJ’s on poverty. This is a crucial distinction that has been lost amid the growing ruction over the National Security Agency surveillance programs. Another point lost amid the uproar is that the safety of citizens is the first—and in our view, the principal—obligation of government.

In our age of proliferating nuclear weapons and genetically engineered biotoxins, a country serious about self-preservation must detect potential threats and prevent attacks before they occur, not prosecute them as crimes after the fact. The architecture to protect civilians must therefore include signals intelligence, or surveillance, to obtain actionable information about the plans, actions and capabilities of the decentralized and lethal networks that are al Qaeda and its franchises.

It has been instructive to watch liberals rediscover that the Constitution limits government power, at least on civil liberties. Too bad they show no such compunction about economic liberty. The ObamaCare mandate-tax that commands Americans to buy a private product is far more offensive to the Constitution than NSA reading the emails of terrorists overseas.

The regulatory agencies claim—and use—the power to seize property and control individual conduct. The very administration of the entitlement state depends on tracking (Social Security numbers), data-processing (Medicare benefits) and individual scrutiny (tax audits). The IRS knows far more about American citizens than the NSA does, and while there is much speculation about the potential for surveillance abuse, we now have real evidence of corruption at the IRS. So which is the greater scandal?

Libertarians at least claim that both national-security surveillance and economic compulsion are equally offensive, but even most of them concede that a core purpose of the state is to defend against foreign powers and their agents. The legitimacy of the American form of government, as the Constitution’s preamble establishes, is to “insure domestic Tranquility, provide for the common defense, . . . and secure the Blessings of Liberty.”

The more nuanced critics—those who don’t invoke George III or the Stasi—argue that the U.S. is striking the wrong balance between tranquility and liberty. Or as President Obama has put it, that there is a “tradeoff” between security and freedom. More government power often does come at the expense of liberty, but in the case of data-mining this tradeoff is vanishingly small.

The Fourth Amendment restricts unreasonable searches on individuals but imposes few limits on collection and analysis, and technologies have no privacy rights. The NSA is screening the data system in general for conduct that threatens the security of the system, not targeting any particular individual or group using the system. The right comparison is a cop on a beat who patrols public spaces. He’s not investigating a crime or enforcing a law; he’s watching for suspicious behavior.

As the legal scholar Philip Bobbitt argued in his important 2008 book “Terror and Consent,” antiterror methods ought to be “measured not only against the liberties these practices constrict, but also with respect to the liberties they may protect.”

Data-mining is a tool to infer patterns and relationships, but you can’t connect the dots without, well, dots. There really is safety in numbers. The de minimis costs to individuals of data-mining are worth the benefits for society at large, which include not being blown to smithereens on your morning commute.

Some commentators assert an abstract sense that the government has gone too far, but liberty cannot exist absent the basic conditions of security. A government that cannot ensure peace also cannot protect individual rights. Alexander Hamilton in the first installment of the Federalist notes that “the vigor of government is essential to the security of liberty” and “their interest can never be separated.” His famous disquisition about “energy in the executive” in Federalist 70 is that power vindicates “the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy.”

Certainly data-mining could be abused, though leaker Edward Snowden has offered no such evidence, unlike the politicized IRS. But the risks of abuse must be measured in proportion to the damage they might prevent.

It should also be some comfort that two Presidents as distant in temperament and philosophy as George W. Bush and Barack Obama both endorsed the NSA programs. And it’s notable that in an era of hyper-partisanship on Capitol Hill, support for NSA’s programs is bipartisan from the committees that have vetted them in detail.

It’s true that President Obama and his Administration would be more believable in defending the NSA program if they showed more concern for limiting government intrusions in any sphere of life other than who you can marry. But it’s also true that the NSA cannot be activated only when the sitting President is a favorite of certain TV anchors.

The Supreme Court that was aggressively adversarial against Mr. Bush’s antiterror policies (Boumediene, for example, on habeas corpus for Guantanamo detainees) reversed a lower court to dismiss an eavesdropping challenge only this February (Clapper v. Amnesty International). Internal controls including keystroke auditing, layers of lawyers, inspectors general and a special intelligence court also observe the NSA’s activities.

If the law’s controls on the use of surveillance information are abused, then the answer is to punish the abuser. This is another way that a proper IRS probe, complete with punishment for transgressors, would enhance public trust in NSA surveillance.

As for Professor Bobbitt’s liberty test, our view is that data-mining is justified to the extent it wards off far more illiberal and anti-democratic measures that might be imposed following another attack with mass casualties. Recall that the entire city of Boston was shut down for a day after the marathon bombs. In that sense the security advanced by surveillance enhances liberty. The two values are mutually dependent.

A version of this article appeared June 14, 2013, on page A14 in the U.S. edition of The Wall Street Journal, with the headline: Surveillance and Its Discontents.

Review & Outlook: Surveillance and Its Discontents –


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