Are Libertarians Who Worry About NSA Being Head-in-Cloud Ninnies?

Richard Epstein says so! Julian Sanchez says no!

Epstein, along with Mario Loyola, writes in the Weekly Standard an article called "Libertarians of La Mancha" in which he maintains that post-9/11 our very necessary government powers to keep their eyes on the world are horribly tied up in meaningless paperwork, which is highly regrettable yet necessary to win congressional support which means that "Sobriety won out over overwrought civil liberties concerns, and the vital national security policies of the post-9/11 world became settled institutions."

They also repeat administration talking points about how "The program is responsible for foiling about 40 of the 50 terrorist plots which the administration recently disclosed to Congress in classified briefings," which we don't have any particular reason to believe is true, as J.D. Tuccille has pointed out here at Hit and Run.

Epstein and Loyola also applaud the already existing deterioration of Fourth Amendment protections via "third party" rules, such that if you chose to give your info for your own reasons to a third party, the government can take it as well, no problem.

And then this whopper: how is the government to know that it has a good reason to go after you if it can't dig around willy-nilly for info? "Detection is the necessary precursor to an investigation of any particular terrorist pursuant to any sort of warrant. It is necessary in order to develop reasonable suspicion in the first place."

And they wrap up with an amazing team player nod to any Fox-watching right-winger who might be wondering: wait, I'm supposed to be mad at the IRS about investigating right-wingers, right?

The NSA surveillance is not like the IRS’s targeting of conservative groups, as some critics have argued. In the case of the IRS, there are two serious problems: First, the law allows the casual collection of massive amounts of private information on U.S. persons without a warrant; and second, few institutional safeguards protect against abuse by politically motivated officials. In the case of NSA surveillance, by contrast, it is hard to argue convincingly either that the law is too broad or that officials overstepped their bounds.

It is a little hard to argue about officials stepping over bounds convincingly when nearly everything about it is secret, yes, which is the point.

Julian Sanchez at Cato, singled out for criticism by Epstein, takes on this piece, pointing out some factual issues with their blase characterization of how FISA searches work:

As the secret FISA court has explained in a rare public ruling, FISA minimization procedures are “weighted heavily in favor of the government,” with destruction required only when a communication is unambiguously irrelevant. Even wholly domestic communications—which are not supposed to be acquired under FAA authority at all—can be retained under a variety of exceptions. Among these: any communication that is encrypted or otherwise suspected to contain a “secret meaning” can be retained pending cryptanalysis.

They also claim that “[l]ike a wiretap, the target [of FAA surveillance] is always a specific suspect,” and that this “system allows the U.S. government to target specific persons wherever they go (outside the United States).” This is not merely incorrect; it is precisely backwards. As Attorney General Eric Holder made explicit in a letter to Congress urging reauthorization of the FAA, the attorney general and director of national intelligence annually approve “intelligence collection targeting categories of non-U.S. persons abroad, without the need for a court order for each individual target.” In other words, the whole point of the FAA is that the “target” of surveillance at the authorization level is essentially never a specific suspect. 

While I can understand why someone with a generally libertarian attitude about government scope and size could see a national security exception and quietly poo-pooh NSA anguish, that such a person would go out of his way to use their (inherently quite limited) access to the public conversation to do so loudly and at the expense of those with a more realistic sense of how government functions and a more friendly-to-the-individual sense of government limits does perplex me.

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  • <i>i</i>||

    This is being portrayed as a question of valuing privacy versus security. It is a false choice. Close the effing borders and we can have both.

  • Irish||

    How do you plan on closing the 8000 miles of border that we have with Canada and Mexico so tightly that no terrorists can get in?

  • AlexInCT||

    You hate the children!

  • UnCivilServant||

    Invade both Canada and mexico, leaving only a small border with guatemala and belize.

    I kid, I kid.

  • RBS||

    Why not go all the way down to Panama?

  • UnCivilServant||

    That would seem a little imperialistic...

  • RBS||

    Go hard or go home.

  • ||

    Not all of Panama, just to the canal. It's an easily defensible terrain feature.

  • <i>i</i>||

    Mexico is a no-brainier, just build an effing fence. With Canada we'll have to greatly restrict visas, tighten border security, as long as they themselves close their border. We can never be 100 PERCENT safe but we'll be much safer than we are now. 9/11 would never have happened if we had a closed border.

  • ||

    C-. No creativity at all. Try harder.

  • tarran||

    Episiarch, trying harder won't fix a lack of creativity.

    Did you learn nothing from the Deming Red Bead experiment?

  • ||

    No one cares about your jellybean fixation, tarran. Please don't describe again where you shove them.

  • tarran||

    Your utter lack of clue explains much.

    I shall remedy it. Watch this riveting video and learn: The Deming Red Bead Experiment.

  • ||

    Sorry, I'm not going to watch another video of you cramming jellybeans into your various orifices. Fool me seven times, shame on you; fool me eight or more times, shame on me.

  • tarran||

    You're missing out....

    At one point the factory manager fires the stuffed elephant...

  • robc||

    riveting video

    Yeah...no.

    Couldnt they have found someone interesting to show that?

  • Irish||

    This is being portrayed as a question of valuing privacy versus security. It is a false choice. Close the effing borders and we can have both.

    - You at 1:24

    We can never be 100 PERCENT safe

    - You at 1:31

    It took you 7 minutes to contradict yourself.

  • <i>i</i>||

    Notice the 100 PERCENT. Because you will say "well you can't be 100 fucking percent sure. No, you can't, nor can you be 100 percent sure you won't be hit in the head with a meteor in the next few minuets.

  • Irish||

    Now, how would you maintain privacy with this very onerous border regime? If you restrict visas and make it more difficult to get them, then that will require a higher degree of government surveillance and government control.

    Hence, you will not have privacy and security.

  • wareagle||

    so the 100% is your weasel word for putting forth a premise that can't stand up? The only places that approached that level of airtightness were the ones more worried about keeping their own people in than foreigners out.

    We're not closing the borders; we barely control them and few in Congress seem willing to go further than that.

  • Knutsack||

    We need to close the space border! Begin building the shield! With barbed wire!

  • Loki||

    just build an effing fence

    Apparently TEH TERRISTS!!!111!! aren't smart enough to bring along some bolt cutters in the case of a chainlink fence, or some climbing gear to get over a concrete wall. /DERP.

  • Sam Grove||

    Some of the 9/11 hijackers had government approved visas.
    I don't believe any of them actually enter illegally, even though some were on watch lists.

  • Rasilio||

    Not to mention the close to 10,000 miles of coastline

  • CE||

    Eliminate the borders and the governments that patrol them, and we'll have liberty, security, and prosperity unmatched in human history.

  • ||

    Remember, conservatives are closer to us than dems, and should be voted into office!

  • ||

    I understand this guy doesn't speak for the GOP, but I believe I'll hold off on voting for anyone who's position on domestic unconstitutional spying is, "Shut the fuck up and quit being a pussy about it."

  • BakedPenguin||

  • Loki||

    How many times has your wife or girlfriend said that to you?

    I keed, I keed...

  • Hugh Akston||

    Staying home on erection day.

  • wareagle||

    some find that a hard position to take.

  • Hugh Akston||

    Something something rape something position.

    Sorry I gotta meeting, that's the best I can do.

  • ||

    That leaves...?

    The LP? The Constitution Party? The Greens? Not that I'd vote for a Green, mind you.

  • Hugh Akston||

    Jimbo won't even eat greens. Except maybe those green cupcakes they sell for $1/dozen a month after St. Patrick's Day.

  • Robert||

    ...even if they weren't green to begin with.

  • Citizen Nothing||

    I'll vote for a Green or even a Communist on the ballot if there's no Libertarian, just as a (tiny, insignificant, meaningless) message to the fuckin' Rs and Ds.

  • ||

    Good point.

    And fuck you, Hugh. I won't even eat those green cupcakes. I...don't...eat...green.

    Didn't you watch Troll 2?!

  • BakedPenguin||

    You can't piss on hospitality!

  • ||

    JJ thinks vegetables are a communist plot to render him impotent via regular bowel movements. Yes, JJ thinks diarrhea makes you fertile. Blame his involvement in Scientology for that.

  • tarran||

    In the immediate aftermath of the war between the states there were a number of prominent nutritionists advancing the theory that vegetables were an Italian plot to weaken and debase the energetic and capable WASP race.

    Peppers, tomatoes, olives were all to be avoided in favor of a cabage and meat based diet. Fortunately back then houses were so drafty that the widespread use of open flames for light and heat did not lead to a rash of home explosions.

  • Brett L||

    Don't forget the dirty Irish potato. Definitely a Catholic vegetable.

  • Robert||

    That reminds me...I'm getting over a case of what I'm pretty sure was food poisoning caused by eggs. Lots of diarrhea, really knocked me out. Tip from this experience: When you hard-boil eggs, make sure the water completely covers them; preferably also a lid on the pot.

  • Raven Nation||

    Apologies for repeating something I posted in a similar thread BUT, the one heartening thing about the conservative "intellectual" defense of the NSA has been the excoriation of said defense in the comments sections of sites such as AmSpec, NRO, etc. By a very wide margin, any column posted defending the NSA has been ripped in the comments.

  • Irish||

    I wonder if those people will remain so anti-surveillance if a Republican was in office. I hope they would, but I'm not sure.

  • Raven Nation||

    Hard to say BUT, they are attacking people like Epstein and Jed Babbin. It seems to be a part of the disillusionment between the Team Red base and the Team Red establishment. And a lot of Republicans were pretty unhappy with McCain and Romney so, it's possible it will continue.

  • tarran||

    The establishment has been dominated by the Rockefeller Republicans. My guess is that they are little liked outside of New England.

  • ||

    I was not aware of that. That's good. Very good.

  • CE||

    Stop micro-aggressing against short people.

  • sarcasmic||

    The lesser of two evils is still evil.

  • Swiss Servator - past LTC(ret)||

    But is it evil or evil-evil?

  • sarcasmic||

    Yes.

  • Ted S.||

    "When faced with a choice of two evils, I pick the one I've never tried before."

    --Mae West

  • fish||

    Remember, conservatives are closer to us than dems, and should be voted into office!

    Must you poke the stick into Shreeks slovenly burrow every fucking time?

  • UnCivilServant||

    When the truth has exceeded by greated past hyperbole, There's nothing which can be regarded as "unreasonable concern".

  • robc||

    Weekly Standard

    I stopped reading at this point.

  • Aresen||

    Getting opinions from the Weekly Standard is like drinking water from a sewage treatment plant.

  • Irish||

    Except for P.J. O'Rourke articles. I have a special place in my heart for that ex-commie, alcoholic Irishmen.

  • Luddite||

    PJ has become a plurality? Fuckin' A.

  • DJF||

    “””’It is a little hard to argue about officials stepping over bounds convincingly when nearly everything about it is secret, yes, which is the point.”””

    Not only secret, but the people in charge of the program have been caught outright lying about the program

  • tarran||

    In living memory, we had a situation where IRS agents were misusing their office to pursue personal vendettas on their own initiative, including going after the relatives of the people who were the primary target in order to break the primary target's will to resist. Imagine what would happen if they had access to a complete panopticon of every aspect of a target's life?

    Methinks Dickie Epstein should abandon his faith-based world view and join us in the reality based community. It's one of the many childish things people put away when they become adults.

  • fish||

    Methinks Dickie Epstein should abandon his faith-based world view and join us in the reality based community.

    Difficult while curled up in the fetal position under ones bed.

  • Rasilio||

    This is the problem, it is one thing for the info to be out there available to gathered upon presentation of a warrant, it is something else entirely for the government to instantly have access to all of the details of your life immediately and be able to look at them in secret.

    Between 3 (or more) felonies a day overregulation and simply being able to embarrass you it is inevitable that domestic spying of this sort will eventually be used by political office holders to cement their positions of power

  • BigT||

    " it is inevitable that domestic spying of this sort will eventually be used by political office holders to cement their positions of power"

    it is obvious that domestic spying of this sort has already beenused by political office holders to cement their positions of power

    FIFY

  • Scotticus Finch||

    I still can't see the name Julian Sanchez without immediately thinking of the Salty Ham Tears thread, may it rest in peace.

  • ||

    Hey, Epstein, if you want to be spied on for your own good, good for you, pussy. I don't, and I don't care to be taken along with you in your ride to being watched constantly.

    Signed, Epstein's mother

  • ||

    For fuck's sake Episiarch, what don't you understand about this? I'll say it slowly, so you can quit being a fag and get your shit all unretarded:

    THE GOV'T MUST BE ALLOWED TO SPY ON EVERYONE ALL THE TIME OR THE TERRORISTS WILL OVERTHROW THE UNITED STATES AND ESTABLISH A MEDIEVAL WORLD-WIDE CALIPHATE USING THEIR ENORMOUS ECONOMIC MIGHT AND ADVANCED ECONOMIES, ALONG WITH THEIR TWO-OCEAN NAVY.

  • UnCivilServant||

    That might actually be more free than what we've got.

  • Tonio||

    Depends on who you are. No booze. No pr0n. Burqas replace bikinis. Homosexuals executed. A real effing paradise.

  • CE||

    You left out sharia law and burkas.

  • wareagle||

    when Cheney and Obama are in agreement on something, that should be a red flag. However, Cheney is at least honest; he's always had the security boner. Obama is just a disingenuous fuck with a newfound security boner.

  • fish||

    Complete crap!

    Cheney can't get a boner at all.

  • wareagle||

    thanks Lynne.

  • Stormy Dragon||

    The NSA surveillance is not like the IRS’s targeting of conservative groups, as some critics have argued. In the case of the IRS, there are two serious problems: First, the law allows the casual collection of massive amounts of private information on U.S. persons without a warrant; and second, few institutional safeguards protect against abuse by politically motivated officials.

    Unrecognized irony ought to be a toxic substance that builds up in the blood, so that from time to time there would be headlines like "Richard Epstein was rushed to the hospital today to receive treatment for irony poisoning". In a just world, righting that sentence would hurt him at least as much as reading it hurt me.

  • wareagle||

    oddly, I think the agency names could have been reversed and the argument would be just as insane.

  • Sevo||

    "Sobriety won out over overwrought civil liberties concerns, and the vital national security policies of the post-9/11 world became settled institutions."

    Screw you, Epstein. 4th Amendment.

  • ||

    Hmm...Epstein...JEWISH CONSPIRACY!

  • OldMexican||

    Epstein and Loyola also applaud the already existing deterioration of Fourth Amendment protections via "third party" rules


    If you have nothing to hide, you have nothing to fear!!!!

    Except that once you have NOTHING to hide, you ipso facto have NOTHING at all.

  • UnCivilServant||

    I have nothing to hide, but the same reason I don't have my friends mix with my co-workers or either mix with my family is the same reason why I don't want people rooting through my data. It's none of their damn business.

    Also, all of the above would be shocked at some of the things I say here, because I'm smart enough to keep my mouth shut when they're around. My life is a series of very private, separate containers. I have nothing to fear, but everything to hide.

  • Tonio||

    Thank you, UCS. I thought I was the only one who did that.

  • Rasilio||

    couldn't have said it better

  • CE||

    I have plenty to hide, and it's none of your business.

  • kinnath||

    I was born a cynical bastard (good genes from my father), but I never really expected 1984 and Brave New World to come true in my lifetime.

  • Stormy Dragon||

    I always thought Brazil was the most likely dystopia. No one is actively malevolent, but we're slowly crushed under an ever growing mountain of out of control beuracracy.

  • kinnath||

    Yes. But I think it is easier for evil to exploit incompetence that for good to exploit incompetence. So I always assumed there were some real bastards at the top of the hierarchy in Brazil.

  • Stormy Dragon||

    The only guy from the top of the hierarchy (Peter Vaughan's character) doesn't really seem like a bastard. That's what I kinda got as the point of the film: beuracracy gets people so detached from the results of their actions that they end up functioning as bastards even if they're not.

  • Stormy Dragon||

    The only guy from the top of the hierarchy (Peter Vaughan's character) doesn't really seem like a bastard. That's what I kinda got as the point of the film: beuracracy gets people so detached from the results of their actions that they end up functioning as bastards even if they're not.

  • Stormy Dragon||

    The only guy from the top of the hierarchy (Peter Vaughan's character) doesn't really seem like a bastard. That's what I kinda got as the point of the film: beuracracy gets people so detached from the results of their actions that they end up functioning as bastards even if they're not.

  • Tonio||

    I would say that torturing people to death (Palin's character) was actively malevolent.

  • Stormy Dragon||

    Yes, but I kinda got the impression that most of the problems in the society of the film were the result of the paper pusher characters like Johnathan Pryce than the torturers like Michael Palin.

    Think of how many lives Pryce completely wrecked over the course of the movie just trying to deliver somebody a check.

  • Robert||

    No, I don't think even he was. People wind up dying only if a mistake is made, such as if they're attempting to retrieve info from someone who doesn't have any.

  • Loki||

    First, the law allows the casual collection of massive amounts of private information on U.S. persons without a warrant; and second, few institutional safeguards protect against abuse by politically motivated officials.

    Which one is he talking about here? He's talking about the NSA, right?*

    In the case of NSA surveillance, by contrast, it is hard to argue convincingly either that the law is too broad or that officials overstepped their bounds.

    Wait... what the fuck? Is this guy fucking serious?

    *yeah, yeah, yeah, I know "but the FISA court does issue warrants. DERP!" No they don't, they issue super secret rubber stamps that no one's allowed to know about and the phone and internet companies subject to the rubber stamps aren't allowed to talk about.

  • CE||

    I think he mean "officials haven't overstepped their bounds YET".

  • Lord Humungus||

    Lord Humungus is unhappy. No guzzoline and no hat tip.

  • Robert||

    While I can understand why someone with a generally libertarian attitude about government scope and size could see a national security exception and quietly poo-pooh NSA anguish, that such a person would go out of his way to use their (inherently quite limited) access to the public conversation to do so loudly and at the expense of those with a more realistic sense of how government functions and a more friendly-to-the-individual sense of government limits does perplex me.


    Then do you think he has some other reason for writing what he did?

  • nicmart||

    I've always thought Epstein belonged to the Charles Murray school of "libertarians." A fellow traveler of convenience, but not really one of us.

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