June 17, 2013 5:35PM

Richard Epstein’s Ricochet Post on the NSA

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.”   

Epstein writes that one of the “great achievements” of the military community has been its ability to internalize the “norms against abuse” – especially with respect to the “military trials of persons in custody for terrorist activities.”   But there have been serious problems in the trial area.  Here are a few of them:

•    After Jose Padilla, an American citizen, was declared an “enemy combatant,” he was taken into custody by the military, which then refused to allow Padilla to meet with anyone, including an attorney, for nearly two years!  To justify this, federal officials told us that this was not a criminal prosecution--so the norms found in the Bill of Rights (right to counsel, habeas corpus, speedy trial) did not apply.  This was a “national security” matter with different norms.

•    At Guantanamo, Lt. Commander Charles Swift was assigned to represent a prisoner named Salim Ahmed Hamdan before the tribunals there.  The Gitmo authorities informed Swift that he could only meet with his client for the limited purpose of arranging a guilty plea of some sort. From Swift’s point of view, this did not seem to be, well, the American way of doing things.  Sure enough, when Hamdan refused to play along, his access to Swift was cut off.  

•    In 2007, Lt. Commander Stephen Abraham was assigned to serve on a tribunal at Guantanamo.  After his panel found insufficient evidence to conclude that a prisoner was an “enemy combatant,” he was called into several meetings where the military authorities wanted to know “what went wrong?”  Abraham said he was not assigned to any other tribunal panels. (Go here to find Abraham’s full statement.  Still more here.)

•    More recently, microphones were found hidden in the ceiling smoke detectors of rooms where defense attorneys would meet with their clients at Guantanamo.  Lawyers have also complained that their office phones on the U.S. mainland were being monitored.  Government lawyers would neither confirm nor deny such monitoring because a response might compromise “sources and methods.”

Epstein says he has not heard a “credible claim” of constitutional problems with the NSA program.   First, a quick reminder that a policy does not have to be unconstitutional in order to be misguided or just wrong.  Hiding prisoners from the Red Cross is an example of that. More to the point, American business executives risk prison for speaking out about the national security demands made to them by the federal government.  Free speech is in danger here.  

Epstein seeks to assure readers that he might still change his mind about NSA surveillance--just as he did recently on the subject of drone strikes when new information came to light.  He wants us to know that if “systemic invasions of privacy for private gain” were shown, he would not be “indifferent.”  (Only private gain?  Only bothered by, say, widespread bribery of NSA employees for trade secrets by crony capitalists?)  Such an assurance, if that is what it was, is too lackadaisical for the challenge before us.  Our liberty and privacy require a stronger defense than that.

Yes, we must deal with the threat posed by terrorism -- but as we go about that task we must also resist the authoritarian measures that are advanced by the military, intelligence, and law enforcement agencies.  Skepticism about claims of power are most definitely necessary because our experience with those “parts of the government” is not as good as Epstein imagines.

For related Cato work, go here, here, and here.