Over at the Ricochet website, Richard Epstein elaborates on his defense of the NSA surveillance programs that were recently exposed by Edward Snowden. In this post, I want to scrutinize some of Epstein’s observations and arguments.
Epstein begins by waving off the track record of government abuse generally. Forget about the recent IRS scandal and the Associated Press wiretaps, he says, we must focus instead on the “parts of the government” that are organized to address terrorist activity. According to Epstein, those parts of the government “seem to have performed well.” Thus, he concludes, we should have confidence in the federal government’s efforts to stop terrorists.
Let’s take a closer look at the “parts of the government” that address terrorism:
• The Federal Bureau of Investigation: The Inspector General of the Department of Justice found that between 2003 and 2007, the FBI violated the law or government policies as many as 3,000 times as agents collected phone and financial records. A few years later, another investigation found that the FBI repeatedly broke the law while monitoring telecommunications. Major telecom companies had their employees detailed to work in FBI office space and they would respond to very informal verbal requests for phone records, including the “calling circles” of certain reporters. One FBI agent said it was like having an ATM next to his desk.
• The Central Intelligence Agency: It is still hard to believe that the American government hid prisoners from the Red Cross and engaged in torture, but it happened. In 2005, CIA Director Porter Goss went on a TV show and said “What we do does not come close to torture … We do debriefings.” The American public was repeatedly misled about the prisoner policies, but we later learned about the “black sites” and “ghost prisoners.” The CIA also destroyed audio and video tapes of its interrogation practices even after the federal courts issued orders to preserve such evidence.
• The Pentagon: We have also seen problems in the U.S. military. The Pentagon kept a database of persons who protested against the Iraq war. We also know that American prisoners, such as John Walker Lindh and Jose Padilla, were badly mistreated while in military custody. And those were among the most highly publicized cases. (The treatment of Bradley Manning is worth mentioning even though he is not an accused terrorist.) For the non-publicized cases, let’s just recall the letter from U.S. Army Captain Ian Fishback to Senator John McCain: “Despite my efforts, I have been unable to get clear, consistent answers from my leadership about what constitutes lawful and humane treatment of detainees. I am certain that this confusion contributed to a wide range of abuses including death threats, beatings, broken bones, murder, exposure to elements, extreme forced physical exertion, hostage-taking, stripping, sleep deprivation and degrading treatment. I and troops under my command witnessed some of these abuses in both Afghanistan and Iraq.”