Spying: Why Government Can’t Help Itself
By Edward H. Crane
So, you may ask, why is the government so obsessed with spying on Americans – apparently virtually all of us? The answer is found in the well-known fable of the frog and the scorpion. The scorpion, who cannot swim, asks the frog for a ride on his back across a river. The frog expresses concern that the scorpion will sting him, killing him in midstream. The scorpion says, “But then I would die too,” thereby convincing the clueless frog to trust him. In midstream the frog is fatally stung. “Why?” the frog exclaims as he begins sinking, to which the scorpion replies, “It is my nature.”
In a like manner, spying is in the DNA of politicians and government bureaucrats. Ever since the first government was formed, some bureaucrat has been reading our mail. In terms of our English heritage, the first government post was created by Edward IV back in 1481. Oliver Cromwell established the first postal monopoly in 1654. According to historian James I. Campbell, Jr., “A primary reason for the monopoly was to permit surveillance of the citizenry.” In 1657, the first act of Parliament to establish a Post Office declared that the new office would “discover and prevent many dangerous and wicked designs, which have been, and are daily contrived against the Peace and Welfare of this Commonwealth, and the intelligence whereof cannot be well Communicated but by letter.” Or e-mail.
And so it goes today at the National Security Agency (NSA), the CIA, the FBI, and the myriad alphabet agencies tasked with getting Americans to the other side of the river. It is in their nature to spy on us. Also, to lie to us. Pretty much constantly. The credulous frog was lied to. Our national security network lies to us about spying on us. Take former Director of National Intelligence James Clapper, please. In October of 2013 when Clapper was asked by Sen. Ron Wyden (D-OR) if the NSA collected data on millions – even hundreds of millions – of Americans, the NSA chief gave a classic poker tell that he was bluffing by nervously rubbing his shiny dome and replying, “No sir. Not wittingly.” Indeed, he held no inside straight, later admitting he had told “the least untruthful” answer.
The American Founders were remarkably sophisticated in the ways of the world and in the nature of governance. When a woman outside the courthouse in Philadelphia asked Ben Franklin what kind of government the Framers had given us, he replied, “A republic, if you can keep it.” While the Declaration of Independence provided the spirit of liberty and limited government and the Constitution provided the structure for maintaining it, it is likely most of these remarkable individuals would have been amazed at how long their handiwork survived and how successful if turned out to be. But they would not have been surprised at the growth of state power and the loss of so much personal and economic liberty over the past 80 years. To be sure, there have been huge gains for women, blacks, gays, and other minorities, but they, too, have been swept up in the arbitrary diktats of the state, whether being spied upon, forced to support a bloated military budget, denied due process in the criminal justice system, or putting up with sophomoric political correctness on college campuses.
Truth is, when you use your car, make a call on your smart phone, or use your toaster (for all I know) massive amounts of your personal data are collected by the private sector.
The surveillance state is not what the Framers had in mind. In 1789 Jefferson wrote to a friend, “There are rights which it is useless to surrender to the government, and which yet, governments have always been fond to invade. These are the rights of thinking, and publishing our thoughts by speaking or writing… the right of personal freedom.” The so-called Patriot Act and the Foreign Intelligence Surveillance Act (FISA) are unconstitutional without repealing the Fourth Amendment to the Constitution, which pretty much anticipated what the political class would be up to down the road. The infamous Section 702 of FISA grants the feds the right to spy on foreign communications that cross into the United States, and to do so without a warrant or the approval of a judge if a broadly-defined claim of “foreign intelligence” investigation is attached. Those communications often include U.S. citizens who are then swept into an enormous database to be used (illegally) for “backdoor searches” whenever the feds feel the urge.
The urge seems to come more frequently these days. It has been estimated that as recently as 2016 the CIA and NSA used that database to conduct some 30,000 searches for information on U.S. citizens. The actual number is possibly an order of magnitude higher. For “security” reasons no one in Congress or the agencies will say. Sen. Rand Paul (R-KY), who has access to the number of searches but is legally not permitted to reveal that number, estimates it to be in the “gazillions,” thereby giving a sense of the magnitude without risking jail since, as he points out, gazillion is not a real number.
There is no doubt that the CIA and NSA need tools to undertake legitimate surveillance activities. The intersection of technology, philosophy, and policy is complex, to say the least. Seek out tech-savvy analysts who have a primary focus on liberty. (I like Patrick Eddington at Cato, and Jim Harper at the Competitive Enterprise Institute.) Truth is, when you use your car, make a call on your smart phone, or use your toaster (for all I know) massive amounts of your personal data are collected by the private sector. Facebook and Google are threats to privacy, but primarily through their willingness to cooperate with government. Still, if North Korea can hack a major movie studio and Russia can hack into the Winter Olympics (not to mention U.S. elections) we’re dealing with a serious problem. One thing we do know is that the solution is unlikely to come from government. Or, for that matter, Google or Facebook. Right now some socially retarded (er, challenged) teenager in a garage somewhere in Odebolt, Iowa is working on a very cool solution to some of these issues.
That said, the federal government’s insatiable thirst for spying on us demands immediate attention. Liberty requires respect for our individual sovereignty – for our dignity. The abuses of FISA and the notorious malleability of FISA Courts make a mockery 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.
The Fifth Amendment is very much along the same lines with its emphasis on due process before the feds can take anything away from us. Ignoring these critical amendments and the spirit of the Declaration has led directly to the rise of the rule of man over the rule of law in our nation. As a result, the concept of a republic has given way to a kind of untrammeled majoritarianism.
Populism, whether on the Left or the Right, appears disdainful of constitutional constraints on the political passions of the moment. This decline in the rule of law manifests itself in the contempt high-ranking federal authorities demonstrate to Congress when forced to account for their agency’s actions. That attitude was best exemplified by former (thank god) IRS chief John Koskinen. In his appearances before oversight committees in both the House and the Senate, Koskinen’s face dripped with disdain for those who questioned what in the world the IRS was thinking when it denied tax-exempt status for conservative and libertarian organizations that clearly qualified. He denied the IRS deleted any material related the tax-exempt scandal. He was lying. He was covering up for Lois Lerner who had spent most of her government career trying to undermine individuals and groups favoring limited, constitutional government – first at the Federal Election Commission, later at the IRS. Ironically, Lerner’s display of contempt came in her refusal to answer any questions from Congress, citing her Fifth Amendment rights against self-incrimination.
I always admired Mae West’s answer in the old W.C. Fields movie when the judge admonished her, “Are you trying to show contempt for this court?” and she replied, “I was doin’ my best to hide it.” In today’s political environment, senior bureaucrats have little interest in hiding their contempt for the American public. Say what you will about the clueless narcissist in the White House. He has attracted tens of millions of Americans who believe they’ve been lied to for too long. There are millions on the Left who also seem willing to reassess their slavish support for more and more government. Who knows? Maybe there is hope. Let’s ask Google.
Edward H. Crane is co-founder of the Cato Institute and president of the Purple PAC, a political action committee supporting candidates who favor free markets, social tolerance, and a non-interventionist foreign policy.