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.