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.

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My recent observations on Hoover’s Defining Ideas about the relationship of civil liberties to national security have drawn a stern response from Cato’s own Jim Harper, whose central claim is that I have sounded “needless anti-privacy notes” in my attack on the privacy protective policies that have been championed by Massachusetts Republican State Senator Robert Hedlund, whom I criticized for being too squeamish on aggressive and targeted government action to counter the threats that became all too visible on April 15, 2013. 

Harper’s initial parry is to stress a proposition that no one should care to deny, namely, that the Fourth Amendment imposes a bar against unreasonable searches and seizures, which in turn requires an examination of the purported relationship between the restriction that government seeks to impose and the evil that it seeks to defend against.  But in his choice of example and articulation of principle, Harper is guilty of grievous non sequiturs that add needless confusion to a problem that is already difficult enough to handle.

To examine the relationship between privacy and security, it is always a mistake to start with an example that the author describes as “an illustration ad absurdum,” which is just what Harper does when he bravely denounces a rule that allows for “100% crotch checks at street corners in major cities.”  The simple response is that this kind of action is under current law regarded as per se illegal even in connection with the so-called Terry stopswhich allow a police officer “to stop and frisk” individual on the public street if he or she has “reasonable suspicion” to think that the targeted person has engaged in illegal activity. 

That example has absolutely nothing to do with the design of a workable surveillance system. It also falsely calibrates the relevant choices by dismissing the current cries for increased surveillance as a “closer” question, when the two situations are worlds apart.  The Fourth Amendment treatment of unreasonable searches and seizures rests on a critical distinction between investigation of particular suspects and the stopping of dangers from unknown quarters.  There is a lot more information in the first case, so that a dragnet search makes no sense, which is why particularized evidence is required.  But general surveillance at unknown targets has to spread its net far wider.  It is both less intrusive and more comprehensive, and it can and does work. It was painfully clear from the pattern of events in Boston that the private surveillance cameras that were trained on the Boston Marathon provided indispensable information toward identifying and apprehending the Tsarnaev brothers.  What makes their use unreasonable, when there is not the slightest evidence that the information so acquired was used for improper purposes unrelated to the search?

It may be “worth discussing,” as Harper suggests, whether the use of surveillance will help deter some crimes and stop others.  But, if so, the only useful discussion is one that asks the means-ends question of how, in light of cost and privacy concerns, one can construct the best cost-effective surveillance system available, which can then be coordinated with the activities of police officers and volunteers on the ground, especially at any public event that presents a soft target.

But to dismiss these efforts on the unsupported speculation that “the possibility of apprehension seems not have occurred to the Tsarnaev brothers” can only be described as blinding error, especially in light of their frantic efforts to escape capture so they could strike again.  Nor does it make the slightest sense to tie general surveillance policy to some dubious account of the psychological make-up of two individuals.  It is far wiser to develop policies that improve the ability to track and identify dangerous suspects. Of course it is possible to construct a “surveillance architecture” that so dense as to be useless.  But once again, the sensible case for beefing up Boston’s public surveillance does not require that system designers leap from one indispensable extreme to another.  The real question is how to identify the comprehensive policies that do make sense.

Harper is equally off target about the potential gains from racial or ethnic profiling.  No one accepts the extreme proposition that all terrorists come from the same ethnic stock or practice the same religion. But that observation offers absolutely no reason to ignore valuable information that could help tweak the design of surveillance systems of searches.  The question here is not whether sensible protocols and profiles can narrow the search down to one-fifth the world’s population, most of which does not live in Boston anyhow.  It is the question of whether one can winnow the list of potential suspects from 100 to 20 people, which, if done reliably, gives law enforcement a huge leg up in conducting its investigations.

In sum, Harper would have a stronger case if he had tried to comment constructively on serious proposals that are put forward.  But to take an ill-advised a priori position that does nothing to advance either the protection of human life and human property, both private and public, is inconsistent with any sound libertarian position.  Remember that libertarians like myself, and I hope Harper, regard the protection of both as the primary function of the state. Harper’s careless and imprecise invocation of the Fourth Amendment cannot conceal this fundamental truth.

One of the realizations that helped me to dispense of the neoconish foreign policy views of my youth is that for federal policymakers, the Pentagon is like a giant jobs program. Regardless of need, a military installation or armament factory can generally count on the unwavering support of the member of Congress who represents the district or state where the facility is located. 

On Monday, the Associated Press’s Richard Lardner provided a textbook example: over the past two years Congress has spent almost a half billion taxpayer dollars—and wants to spend another $436 million—upgrading Abrams tanks that experts and the Army itself say aren’t needed.

Who are some of the biggest congressional backers of the tank upgrading? Why, Republican “deficit hawks”! 

Keeping the Abrams production line rolling protects businesses and good paying jobs in congressional districts where the tank’s many suppliers are located. 

If there’s a home of the Abrams, it’s politically important Ohio. The nation’s only tank plant is in Lima. So it’s no coincidence that the champions for more tanks are Rep. Jim Jordan and Sen. Rob Portman, two of Capitol’s Hill most prominent deficit hawks, as well as Democratic Sen. Sherrod Brown. They said their support is rooted in protecting national security, not in pork-barrel politics. 

“The one area where we are supposed to spend taxpayer money is in defense of the country,” said Jordan, whose district in the northwest part of the state includes the tank plant.

Ah, yes, the “national security” excuse—probably the most cited justification by politicians to spend other people’s money since the ink dried on the Constitution.        

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