I have been told that I make the perfect the enemy of the good. This is in the context of my commentary and critique of what I view as less-than-libertarian positions by those who claim to stand for liberty, freedom, free markets, and property rights.
I probably spend more time critiquing these so-called friends of liberty than I do critiquing the obvious enemies of liberty. The enemies are easy targets, and there is little to gain here – individuals who drink from this bathwater are coming nowhere near the sites I visit, including this blog.
But the so-called friends…. I find it important to deal with these. These are the ones who provide a false view of freedom. These are the ones who find common ground with the theft and murder of the state. These are the ones most dangerous to developing a well-grounded education and understanding as basis for a free society. And these are the ones who pretend to offer answers to those asking questions about liberty and freedom. These are the false prophets.
I do not claim to be a saint on such subjects myself. I have learned much about my own views on these, and have modified these when I concluded my views fell short. I am still, and always, learning.
So, why the mumbling preamble? This latest news of the NSA, PRISM, etc., has brought some of these so-called friends out of the woodwork. One such example is this commentary by Roger Pilon and Richard A. Epstein of the Cato Institute, entitled “NSA Surveillance in Perspective,” (h/t LRC).
As I am sure many readers of this blog know, the Cato Institute represents itself as one of the premier think-tanks when it comes to subjects of individual liberty and free markets. From the “About” page at the Institute’s site:
The Cato Institute is a public policy research organization — a think tank – dedicated to the principles of individual liberty, limited government, free markets and peace. Its scholars and analysts conduct independent, nonpartisan research on a wide range of policy issues.
Founded in 1977, Cato owes its name to Cato’s Letters, a series of essays published in 18th- century England that presented a vision of society free from excessive government power. Those essays inspired the architects of the American Revolution. And the simple, timeless principles of that revolution — individual liberty, limited government, and free markets – turn out to be even more powerful in today’s world of global markets and unprecedented access to information than Jefferson or Madison could have imagined. Social and economic freedom is not just the best policy for a free people, it is the indispensable framework for the future.
So, what does this think tank “dedicated to the principles of individual liberty” and “limited government,” with its name taken from “a series of essays…that presented a vision of society free from excessive government power” in this time of “unprecedented access to information” have to say about the NSA surveillance?
Legally, the president is on secure footing under the Patriot Act, which Congress passed shortly after 9/11 and has since reauthorized by large bipartisan majorities. As he stressed, the program has enjoyed the continued support of all three branches of the federal government.
The same can be said of every major government program: the federal income tax, the establishment of the Federal Reserve, the funding of the worldwide military empire, Social Security, Medicare, federal funding of education, etc. Legally, every federal program is on secure footing because every federal program has been declared legal by the federal government.
Therefore, literally nothing the federal government does can be challenged based on this justification. So, what exactly is the point of an Institute like Cato?
Every federal program enjoys continued support of all three branches of federal government – if not, these would no longer be federal programs. What does this view suggest about the hope for limited government? What does this view suggest for a supposedly libertarian think-tank?
It has been free of political abuse since its inception.
There is absolutely no way to make this statement based on fact. Every aspect of the program is kept secret from the public, and many aspects are kept secret even from Congress. Those with a knowledge of any particular aspect of the program are not allowed, under federal law, to even acknowledge that they have any knowledge of the program.
And as [Obama] rightly added, this nation has real problems if its people, at least here, can’t trust the combined actions of the executive branch and the Congress, backstopped by federal judges sworn to protect our individual liberties secured by the Bill of Rights.
This line from Obama has to be one of the funniest lines to come out of any politician in years. But for an institute dedicated to individual liberty to use this as evidence of proper governmental authority is absurd: every federal government action has the approval of the three branches of the federal government else it cannot be a federal government program. It is impossible to have “limited government” if all that is necessary for the next encroachment is approval of three branches.
The authors of this commentary suggest that this is one area where Obama was right to change his mind. Obama the candidate, the senator from Illinois, spoke often about an over-reaching surveillance state. Obama the president has taken this surveillance state farther than ever hoped by those intent on control.
In domestic and foreign affairs, the basic function of government is to protect our liberty, without unnecessarily violating that liberty in the process. The text of the Fourth Amendment grasps that essential trade-off by allowing searches, but not “unreasonable” ones.
The text of the Fourth amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Even accepting this definition of the basic function of government, how does the NSA program fit within the term “unreasonable”?
What is reasonable? Agreeable to reason or sound judgment; logical. Not exceeding the limit prescribed by reason; not excessive. Showing reason or sound judgment. Having the ability to reason. Having modest or moderate expectations; not making unfair demands.
The surveillance in place and to be put in place will have the ability to track and monitor virtually every single online and telecommunication event of every connected individual on the planet. Cato views this as reasonable, not excessive, showing sound judgment, having modest expectations, not making unfair demands….
Imagine a conversation at a dinner in 1790...:
Neocon Alexander: Well, you know, those Indians beyond the mountains might one day decide to attack us. They have done so before.
Libertarian Thomas: Perhaps if we stopped taking their land they would not be so aggressive.
Neocon Alexander: Thomas, that has nothing to do with it. They might attack. It is the job of this new government, the one to be formed under this Constitution, to protect every American against such a possibility.
Libertarian Thomas: And just how do you propose we do that?
Neocon Alexander: I suggest we station a sentry at the door of every house, shop, church, meeting hall, and pub. The sentry will record who comes and goes. Of course, they will not listen in on the conversations inside – trust me – but it will be helpful to have a pattern of who is talking with whom. After all, there might be one Indian in one of those buildings at some point in time, someday.
Libertarian Thomas: This is why your Constitution stinks.
Neocon Alexander: But wait; we will add a Bill of Rights. And in it we will disallow unreasonable searches.
Libertarian Thomas: I guess you think a sentry at every door is reasonable.
Neocon Alexander: Of course, as the Cato Institute says: “…the basic function of government is to protect our liberty, without unnecessarily violating that liberty in the process.”
Libertarian Thomas: And I guess you don’t see a sentry at every door to be an unnecessary violation?
Neocon Alexander: No, it is a necessary violation.
Libertarian Thomas: And who decides if it is necessary?
Neocon Alexander: Why, the federal government. Of course!
Libertarian Thomas: Well, OK. But only if the capitol is in Virginia!
Libertarian Thomas: Well, OK. But only if the capitol is in Virginia!
This brings us back to this commentary by Cato, and their application of the term “unreasonable”:
That instructive, albeit vague, accommodation has led courts to craft legal rules that, first, define what a search is and, second, indicate the circumstances under which one is justified.
Every single communication by every single connected individual on the planet is subject to this activity by the NSA. I struggle to find a more all-encompassing definition of unlimited government. Yet, this is not unreasonable according to the defenders of “individual liberty” and “limited government”, the Cato Institute. This is not considered “excessive government power” in this time of “unprecedented access to information.”
Murray Rothbard was one of the founding members of this Institute. There are likely few other examples of a most wonderful libertarian message being co-opted into the mainstream than Cato, as evidenced by this commentary.