The NSA’s Impossible Position

by Kevin D. Williamson
Squandering the most precious commodity: trust

In politics, scale matters. If government spent 1 percent of GDP annually, we’d probably still have waste, fraud, abuse, self-dealing, and all the rest of it, but it would matter less to people. From a moral point of view, a little misuse of public resources is no different from a lot of it, but adults know that the world is not a perfect place and that we’d be lucky to have problems that bug us symbolically or as a matter of principle while causing us very little trouble in fact. That is the inadequately appreciated background to the current dispute over the NSA’s surveillance programs.

On one side of the debate, we have those who prioritize national security — on the left and on the right — who argue that the world presents such intense dangers that the government must be given certain tools to address them. On the other side, we have those who prioritize civil liberties — also on the left and on the right — who argue that our government has shown that it cannot be trusted with some of those powers. The problem is that both sides are correct. Yes, we need to take very strong measures against jihadists and other mortal threats, and no, our government does not give the appearance of deserving our trust with the weapons in its arsenal. 

General Keith Alexander, director of the NSA, attempted to reconcile those differences today at an open congressional hearing, and his main arguments were: 1) The program is subject to strong oversight; 2) Very few “identifiers” (such as telephone numbers) were targeted, about 300; 3) Very few people (22) have access to those records; 4) Even under such constraints, the program has stopped 50 or so terrorist attacks.

It is not a judgment upon the character of General Alexander but a judgment upon the character of the government he serves that reasonable people might ask: About those 50 attacks prevented — are we counting those up the same way we counted up “jobs created or saved” by the stimulus? Those 22 people who have access to the records — are they about as trustworthy as the IRS agents who improperly targeted their political enemies? About as smart as the DOJ folks who oversaw the gun-walking operation? That oversight — is it conducted by some of the same people who oversee things like corrupt federal-contracting practices? And can we assume that those 300 identifiers are attached to targets selected with the same probity exhibited of late by the IRS, ATF, etc.? And surely today’s 300 will not be tomorrow’s 300,000 — but whose word should we take on that? That of the expanding catalogue of people who have lied to Congress of late?

The cartoon version of limited-government conservatism that one encounters in the media or in the speeches of Democratic office-seekers holds that the Right wishes to limit government either because it suffers from an irrational hatred of government qua government or, in the arguably nastier version, because it hates poor people and does not wish to see them benefit from government programs. (There’s a lot of question-begging in that second one: The poor are not the primary beneficiaries of our overgrown political apparatus.) But keeping government from doing things is only part of the case for limited government; another equally important part of the case is that limited government helps us ensure that government is better able to do the things we need it to do.

Limiting government improves government operations in two ways, one obvious and one less so. The obvious way is that by limiting the scope and variety of government activity, we can focus limited resources — including that most limited of resources, human intelligence — on the functions that are inherently governmental, such as physical security in the form of police, military, border controls, and the like. This is in conservative thinking complemented by the principle of subsidiarity, which allows for a greater scope and variety of government action as one travels down the scale from national to state to local to sub-municipal government. A homeowners’ association can be annoying, but it is not Leviathan. Moving from California to Texas, or from the Katy school district to the Humble school district, is a much less disruptive undertaking than immigrating between countries. It is for that reason that so many American conservatives admire the government of Switzerland, which has a gift for devolving politics.

The second and less obvious way in which limiting government strengthens government is through the elusive and irreplaceable commodity of trust. Like true love and home-grown tomatoes, trust in political institutions cannot be bought or manufactured. It is organic and fragile. The staff of the NSA could be composed exclusively of patriots with IQs of 185 and the dispositions of saints, but still they would be members of the same government as Barack Obama, Joe Biden, Lois Lerner, Susan Rice, Eric Holder, and Charles Rangel. The federal government is not in practice really a unitary thing, having as it does fissures and competing factions, but from the citizen’s point of view, it appears effectively monolithic. It is perfectly rational for an American citizen to doubt the NSA’s probity in exercising its investigatory powers when that same citizen knows what the IRS has done with its investigatory powers. It is perfectly rational for an American citizen to consider the national debt and doubt Congress’s power to conduct intelligent oversight of anything more complicated than one of the smaller Crayola sets (meaning the eight-crayon box, not the 120). And it may be perfectly legal and constitutional — whatever we’re pretending those words mean today — for the Obama administration to assassinate American citizens, but it is also perfectly rational for those actions to cause American citizens to distrust their government.

Just as a certain level of waste and fraud would be much more tolerable in a government that spent only 1 percent of GDP, a certain level of cloak-and-dagger adventuring would be much more tolerable in a government under which the taxman was not taking a keen interest in citizens’ prayers and politics. One expects the CIA to play fast and loose with legal niceties; doing so is in the nature of the enterprise. If Iranian nuclear scientists do seem to be terribly accident prone, most of us will not lose a great deal of sleep. (But one also expects these agencies to be discreet: If you cannot keep your secrets from a nobody contractor or WikiLeaks, then maybe you don’t deserve to have any.) The distinction may not be a principled one, but citizens probably would be likely to give the government a great deal more leeway interfering with terrorists if it did not spend so much time interfering with us. If the federal government had been as vigilant about Islamic militants as it is about cheese-mite density, the Manhattan skyline would look different than it does, and you do not have to be a raging civil libertarian to appreciate as much.

Our politics is dominated by lawyers and by legal argument, and it is possible to draw up a compelling argument why such-and-such narrowly defined government activity — NSA snooping, drone strike, tax audit — is legally and constitutionally justified. But that debate happens in an imaginary universe. In the real world, everything the federal government does is inescapably bound up in every other thing the federal government does: How can we not have money for health care when we have money for foreign aid and cowboy-poet festivals and getting monkeys high on cocaine? How can we imprison millions for narcotics while we are effectively in bed with the poppy trade in Afghanistan? How can a government with corrupt IRS agents on the payroll say “Trust us!” with a straight face? A little bit of hypocrisy is not the end of the world: Hypocrisy, like alcohol, is a social lubricant, but overindulging in it brings trouble. And not just theoretical moral trouble, but real practical trouble: In a free society, public institutions only work well in an atmosphere of trust. The NSA is learning that right now. It may not be one of the more important sources of distrust in government, and it may be performing one of the functions that properly belong to the federal government, but its ability to do so is going to be constrained — and rightly so — by the fact that Americans do not trust their government, because they cannot trust their government.

And so we find ourselves at the place where the unstoppable force of necessity meets the unmovable object of debarment, where the federal government must proceed and must not proceed, where a government that tries to do everything can’t quite do anything right.

Kevin D. Williamson is a roving correspondent for National Review and author of the newly published The End Is Near and It’s Going to Be Awesome.