"STATO" Strikes Again: Should Libertarians Put NSA Surveillance "In Perspective"?Submitted by Marc Clair on Thu, 06/13/2013 - 14:05
For a supposedly “libertarian” organization, CATO sure does find itself defending the State fairly often. Coming off a piece from a couple months ago defending universal background checks for gun purchases, now CATO’s Roger Pilon and Richard A. Epstein have joined forces (apparently it takes two faux libertarians) to defend NSA surveillance of Americans. It’s not hard to see how CATO has earned the nickname “STATO” in more hardcore libertarian circles.
Pilon and Epstein start off by assuring everyone that the secret NSA surveillance program recently revealed by whistleblower Ed Snowden is perfectly legal (and therefore fine and dandy!):
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.
Indeed, one of the more frightening aspects of this program is that it indeed may be “legal” under the PATRIOT Act. Of course, a law is never really “legal” when it is in direct conflict with the Constitution, and Patriot Act or no Patriot Act, the NSA spying on the phone calls and digital communications of Americans is clearly being done without probable cause, in clear violation of the Fourth Amendment. But fear not, the program has the “continued support” of all three branches of government!
After glossing over the Obama administration’s various scandals (he’d be on “stronger ground” if it weren’t for those pesky scandals you see), this dynamic duo goes on to use the Fourth Amendment to defend the spying program!
In domestic and foreign affairs, the basic function of government is to protect our liberty, without unnecessarily violating that liberty in the process. The text of the Fourth Amendment grasps that essential trade-off by allowing searches, but not “unreasonable” ones.
Pilon and Epstein are half right. The basic function of government, under the Constitution, is indeed to protect the liberty of its citizens. Period. There is nothing about violating the liberty of the citizens if the government deems it “necessary”. When referring to searches under the Fourth Amendment, they conveniently leave out that the Fourth Amendment does not allow for any searches – reasonable or “unreasonable” – without probable cause and a warrant. The NSA surveillance programs suck up massive amounts of data on American citizens – without probable cause, and without warrants.