I was pleased to see last week that Professor Epstein had penned a response to my criticism of his recent piece on Hoover’s Defining Ideas in which he argued against treating protection of civil liberties and privacy as “nonnegotiable” in the context of counterterrorism. It is not the disagreement that is pleasing, of course, but the opportunity to air it, which can foster discussion of these issues among libertarians while illustrating to the broader world how seriously libertarians take both security and liberty.
What’s most important in Professor Epstein’s rejoinder is what comes at the end. He says that I should “comment constructively on serious proposals” rather than take an a priori position that civil liberties and privacy will often impede expansions of government power proposed in the name of counterterrorism.
I believe that Professor Epstein and I share the same prior commitments–to limited government, free markets, and peace. Having left it implicit before, I’ll state that I, too, believe that protection of life and property is the primary function of the state. But I also believe that excesses in pursuit of security can cost society and our liberties more than they produce in benefits.
Some years of work on counterterrorism, civil liberties, and privacy bring me to my conclusions. I had put in a half-decade of work on privacy before my six years of service on the Department of Homeland Security’s privacy advisory committee began in 2005. While interacting with numerous DHS components and their programs, I helped produce the DHS Privacy Committee’s risk-management-oriented “Framework for Privacy Analysis of Programs, Technologies, and Applications.” From time to time, I’ve also examined programs in the Science and Technology Directorate at DHS through the Homeland Security Institute. My direct knowledge of the issues in counterterrorism pales in comparison to the 30+ experts my Cato colleagues and I convened in private and public conferences in 2009 and 2010, of course, but my analysis benefitted from that experience and from co-editing the Cato book: Terrorizing Ourselves: Why U.S. Counterterrorism Policy is Failing and How to Fix It.
Whether I’m operating from an inappropriate a priori position or not, I don’t accept Professor Epstein’s shift of the burden. I will certainly comment constructively when the opportunity arises, but it is up to the government, its defenders, and here Professor Epstein to show that security programs are within the government’s constitutional powers, that such programs are not otherwise proscribed by the constitution, and that they cost-effectively make our society more secure.
The latter two questions are collapsed somewhat by the Fourth Amendment’s requirement of reasonableness, or “fit” between means and ends when a search or seizure occurs. And to the extent I can discern the program that Professor Epstein prefers, I have commented on it as constructively as I can.