4 Principles for a Libertarian National Security State

How to protect Americans - and constitutional rights.

This article originally appeared at The Daily Beast on September 14, 2013. Read the original by clicking here.

Like hits for Katy Perry, the scandals for the National Security Agency just keep coming. In the wake of revelations that the NSA has been tracking virtually every phone call ever made and sifting through Internet data like a crazed prospector panning for gold at Sutter's Mill, there's yet more disturbing news with every passing day.

The latest is that between 2006 and 2009, Politico reports, the NSA lied about its activities to the Foreign Intelligence Surveillance Court charged with authorizing its snooping. Worse still, this outcome is a toxic mix of spy-agency overreach and bureaucratic incompetence. "An internal inquiry into the misstatements also found that no one at the NSA understood how the entire call-tracking program worked," says Politico, which quotes an unnamed source who explains, "There was nobody at NSA who really had a full idea of how the program was operating at the time."

This is as outrageous as it is dispiriting (and predictable). But a dozen years after the 9/11 attacks ushered in the global war on terror, there's no reason that we should have to live in fear of our government's efforts to keep us safe and warm. Here are four basic principles that should inform what might be called a libertarian national security state. That is, one that helps to protects us without routinely transgressing constitutional guarantees to privacy, due process, freedom from illegal searches, and the right to be left alone.

1. Transparency uber alles.

One of the main reasons that Barack Obama's approval ratings are in the crapper is because of his epic failure to live up to his promise to run what he guaranteed would be the most transparent administration EVAH. That's especially true when it comes to national security issues. Even the most hardened anti-terror hawks have been shocked by revelations of widespread secret drone strikes, extra-judicial kill lists, a war on leakers and journalists, and ubiquitous snooping on Americans.

However disturbing it was to learn of massive surveillance of law-abiding citizens in violation of restrictions on the NSA, it was made even worse by blatant lies to the American public. When Director of National Intelligence James Clapper flat-out lied under oath to Sen. Ron Wyden (D-Ore.), there should have been immediate and visible consequences, both in terms of personnel and policy.

In an age of Wikileaks, Anonymous, Edward Snowden, and other ultimately unstoppable forces, transparency isn't just a buzzword, like green energy orfarm-fresh. It's an eventuality and the first government that levels with its people about what it's actually up to will be far stronger and resilient than one that is constantly hiding its activities. We're grownups, for Christ's sake, and if some sort of restriction on our freedoms or oversight on our activities is actually defensible and necessary for a legitimate security purpose, we'll respond in a responsible way.

Every bullshit, after-the-fact rationalization drives a deeper wedge between citizens and government. White House press releases like the one issued on July 23 don't help. "In light of the recent unauthorized disclosures," it read, "the President has said that he welcomes a debate about how best to simultaneously safeguard both our national security and the privacy of our citizens." In such moments, Barack Obama moves beyond cynicism into the realm of pure insult.

2. Legal authority is not optional.

Whether we're discussing the use of drones, metadata dragnets, or anything else that seems creepy at first mention, the real anxiety stems from a lack of a clearly articulated and defensible legal framework. As disconcerting as it was to learn of a secret presidential kill list, it was far worse to realize that there was essentially no controlling legal authority which bound Barack Obama's decisionmaking process. Similarly, recognizing that the NSA is not simply unwilling to follow the law but incapable of even understanding it is unacceptable.

No government—or branch of government—wants to have its decisions vetted by any sort of watchdog, but that's the only way to minimize errors and build confidence that national security operations are not ultimately creating a government within a government. We have reached the point where the courts originally set up by 1978's FISA (itself a product of an earlier era of massive violations of civil liberties), need a complete overhaul. If even sitting senators have trouble getting information about how and why the government is collecting information on citizens, something is wrong beyond repair.

The same is true for the foundational document in the War on Terror, which was passed by Congress on September 14, 2001 and grants vague and sweeping powers to the president of the United States. It reads, "The president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." A dozen years after the 9/11 attacks, any such declaration needs to be scrapped, rewritten, and voted on—in the cold light of day, not a hot flash of panic.

3. Target the bad guys.

Supporters of a massive, effectively unregulated surveillance state are constantly touting the benefits of dragnet-style reporting requirements and snooping. For instance, Sen. Dianne Feinstein (D-Calif.) and Rep. Mike Rogers (R-Mich.) have said repeatedly that NSA logging of phone call metadata and internet traffic were instrumental in the 2009 arrests of Najibullah Zazi, who plotted to blow up New York's subway system, and David Headley, who traveled to Mumbai to scope the Taj Mahal hotel for an attack. Yet it turns out that neither case provides any evidence for the efficacy of widespread surveillance programs.

Indeed, they point to the effectiveness of old-fashioned intelligence and police work, where authorities keep tabs on people and groups with well-known reputations for violence and terrorism (Zazi was picked up based on tips from British agents; as a former Drug Enforcment Adminstration informant (!), Headley was well-known to investigators).

Surveillance-state supporters are constantly invoking the "needle-in-the-haystack" metaphor, the idea being that finding terrorists requires patient sifting through huge mounds of extraneous material. It's odd then, isn't it, that the basic urge is always to increase the size of the haystack rather than decrease it. Consider how The PATRIOT Act vastly increased the number of "currency transaction reports" (CTRs) that banks needed to file with the federal government in the name of outing terrorist money flows. Originally created to help snag drug kingpins, some 12 million CTRs were being filed annually before 9/11—a number that was already overwhelming any ability to use the information effectively. Creating a bigger haystack isn't a smart way to find bad guys hidden within.

The same dynamic is at work in arguably the most-visible and least-popular excresence of the war on terror: the creation of the Transportation Security Administration (TSA) and the imposition of invasive and time-consuming procedures at the nation's airports. The threat of hijacked planes being used as missiles was effectively ended on the morning of 9/11 itself, when passengers charged hijackers on United Flt 93 and drove the plane into a Pennsylvania field. The barricading of cockpit doors shortly after 9/11 ended the possibility of a repeat of 9/11. Yet we continue to fund a massively expensive system to search all people boarding airplanes in a long-running exercise in "security theater" that accomplishes nothing.

4. Track the effectiveness.

Speaking of the TSA leads directly into a final way of minimizing the excesses and wastefulness of a national surveillance state. Every policy and every agency needs to be reviewed for effectiveness over time. On its 10-year anniversary, the TSA was the subject of a withering report by Reps. John Mica (R-Fla.) and Paul Broun (R-Ga.), who noted that $56 billion invested in making flying safer after 9/11 had not increased safety by any appreciable measure.

At the same, TSA personnel increased by 400 percent while passenger volume had increased by less than 12 percent. More recently, in July, the GAO released a report documenting a 27 percent increase in TSA-employee misconduct between 2010 and 2012.

A variety of books over the past few years—including Moises Naim's new The End of Power and Matt Welch's and my The Declaration of Independents(2011)—document the way in which power and authority is leaching out of traditional centralized authorities such as governments, corporations, and churches. This result is a change in the relationship between state and citizen, producer and consumer, priest and congregant. What was once a far more hierarchical, top-down, and force-fed relationship is much flatter and more voluntary. Companies must do more than ever to placate their workers and customers, and even the Catholic Church can no longer issue doctrine without regard for the reaction of believers.

Governments, of course, maintain more power but even they rest ultimately upon the consent of the governed. At least since the attacks of September 11, 2001, our own government has used real and imaginary threats to engage in behavior that is not just increasingly being revealed to the public (thank you, Edward Snowden and other whistleblowers) but being reviled as noxious, misguided, and offensive to basic civil liberties and freedom. It's little wonder then, that the president's and Congress' approval ratings are so low. Would that they would recognize us as partners in the war on terror rather than as potential combatants. They might just make our world a bit safer and be able to get on with their jobs of actually governing.

This article originally appeared at The Daily Beast on September 14, 2013. Read the original by clicking here.