February 7, 2014 3:42PM

‘Libertarian Paranoia’ Strikes Deep?

In case you missed it, in his Bloomberg column last week, law professor and former Obama administration OIRA head Cass Sunstein offered tips on “How to Spot a Paranoid Libertarian.” They're people who "have a wildly exaggerated sense of risks to liberty, who adopt a presumption of bad faith on the part of government, who have a sense of victimization, who ignore the problem of tradeoffs, and who love slippery-slope arguments." I probably know some folks who resemble that remark.

In the column and a follow-up blogpost, Sunstein distinguishes between "Paranoid Libertarians" and libertarians in general, who are "speaking on behalf of an important strand in America’s political culture." And he's right that virtually all ideologies, libertarianism included, attract some swivel-eyed, conspiratorial adherents who use too much ALLCAPS in their emails. 

What Sunstein doesn’t have is anything resembling a case that “libertarian paranoia” is worth worrying about. In fact, beyond a few anodyne statements like "paranoia isn’t a good foundation for public policy," he barely tries to make one.  

But, Sunstein suggests, something of what he's getting at can be found in a 2005 paper on “Libertarian Panics” by his colleague Adrian Vermuele.

I remember that paper very well, having blogged a fairly lengthy critique of it when it came out. It hasn't improved with age.

The basic argument is plausible enough: Vermuele holds that the same biases and cognitive flaws that can make Americans hysterical about the risk of terror can also make us hysterical about the risks of government abuse. Thus, the salience of past examples of government overreaction to security threats—like WWII Japanese Internment—could lead us to overreact to liberty threats from government in the same way we might overreact to terrorist threats to security.

But when Vermuele gets to specific examples of destructive "libertarian panics," there's very little there there. The paper offers two: the American Revolution and the PATRIOT Act. 

True, the Founders could be somewhat overeager to sniff out "design[s] to reduce them under absolute Despotism" (as the Declaration puts it) in every abuse perpetrated by the Crown. But when your lead example of irrational "tyrannophobia" is the country's very Founding, you may have an uphill slog convincing Americans to panic about libertarian panics.

As for his second key example, in the light of subsequent developments, Vermuele's discussion of the PATRIOT Act—opposition to which he characterized as "ignorant," "irrational," and "even hysterical"—now looks tragicomically off-base: 

[C]onsider Section 215 of the Act, which allows courts to issue subpoenas for business records in national security investigations. Many have denounced the provision as a mechanism of governmental oppression. Yet the provision codifies a power that grand juries (typically dominated by prosecutors) have long exercised without judicial oversight.  

Back then, the paranoids panicked about the government using 215 to get library records; hardly anyone thought the federal government would secretly invoke it for bulk collection of every American's phone records and construction of what Sen. Ron Wyden (D-OR) has called "a federal human-relations database."

I'm reminded of what the Johns Hopkins cryptography professor recently wrote about the Snowden revelations: "I'm no longer the crank. I wasn't even close to cranky enough." (See "Crypto prof asked to remove NSA-related blogpost.")

But you don't have to be a "Paranoid Libertarian" to worry about potential abuse of the NSA's expanded powers, or to question how useful those powers are to Americans' security. I mean, as sober and reasonable a fellow as Cass Sunstein has recently done just that as a member of the president's post-Snowden NSA Review Group. So it's strange that he apparently finds Vermuele's paper convincing.

Then again, the two share some strange views on policy. Sunstein and Vermuele are occasional coauthors, most notably on a 2008 examination of “Conspiracy Theories.” Some of these theories are dangerous, they write, they can “create or fuel violence,” and “if government can dispel such theories, it should do so.”

How? "Our main policy idea is that government should engage in cognitive infiltration of the groups that produce conspiracy theories" [emphasis in original]. Government agents, possibly operating "anonymously or even with false identities," could "enter chat rooms, online social networks, or even real-space groups and attempt to undermine percolating conspiracy theories by raising doubts about their factual premises, causal logic or implications for political action.” 

Now, it seems to me that if you wanted to breathe new life into conspiracy theories, a great way to do that would be to encourage the impression that people making rational arguments against them are government agents. But it's a great illustration of the point Jesse Walker makes in his 2013 book The United States of Paranoia: A Conspiracy Theory: that elite fear of alleged "cranks" is a potent political force in American life. As he cautions, "the most significant sorts of political paranoia are the kinds that catch on with people inside the halls of power, not the folks on the outside looking in."