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The Limitations of the NSA/IRS Comparison



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As an attorney suing the IRS on behalf of 25 conservative groups (with more to be added soon), I’m more than familiar with the Obama Administration’s willingness and ability to abuse its power for partisan and ideological ends. Indeed, as a conservative, I’m well aware of the overwhelming temptation for any administration — Democrat or Republican — to misuse and abuse the vast power of a vast government.

As a veteran of the Iraq War, I’m also familiar with our jihadist enemy — its boundless savagery, its expansionist ideology, and its bitter hatred for America. When people ask me what I took away most from Iraq, I always say, “I had no idea what true evil was until I saw al-Qaeda.”  

And that brings me to my core problem with the argument that the IRS scandal shows us how government can be abused, thus we should roll back our surveillance programs. But in the IRS case, the entire targeting program was created out of whole cloth to punish one set of Americans for exercising core First Amendment freedoms. The conservative targeting program was an abuse by definition and illegal from its conception. With the IRS, there was no threat to address, while the government abuse is very real and substantiated.

With the NSA, by contrast, the threat is very, very real, and the government abuse at least seems to be hypothetical. As Andy McCarthy has repeatedly pointed out, based on the facts that we have, our surveillance programs comply with applicable law.

Moreoever, as Dr. Krauthammer, Jonah Goldberg, and others have noted, items like F-16s and Abrams tanks can also be abused — in fact, there is a long international history of formidable standing armies being turned on the citizenry — but we also recognize that national defense is a core, constitutional function of government, and there is a tradition of honorable conduct by American military leaders.  In other words, despite its matchless capacity to do harm, we trust the Army.

Here is my question to those most concerned about the NSA scandals: given the very real jihadist threat combined with the constitutional obligation of the government to “provide for the common defense” while still securing the “blessings of liberty,” how should we guard the nation? Let’s recall, of course, that our enemy exploits our military and legal self-restraint to magnify our vulnerabilities.

I am by no means wedded to the notion that the surveillance programs recently revealed are necessary to achieve a reasonable level of security. I do think, however, that it’s unwise to think that we can replace them with nothing — especially as we roll back our offensive operations overseas — without paying a terrible price.

One final note: It is difficult to defend the NSA programs when one doubts the will of the Obama Administration to act even when surveillance yields useful intelligence. Let’s not forget that our government has a history of identifying terrorists — only to let them walk free and attack Americans:

Tamerlan Tsarnaev is the fifth person since 9/11 who has participated in terror attacks after questioning by the FBI. He was preceded by Nidal Hasan; drone casualty Anwar al Awlaki; Abdulhakim Mujahid Muhammad (born Carlos Leon Bledsoe), who murdered an Army recruit in Little Rock in June 2009; and David Coleman Headley, who provided intelligence to the perpetrators of the Mumbai massacre in 2008. That doesn’t count Abdulmutallab, who was the subject of warnings to the CIA that he was a potential terrorist.

The right balance between freedom and security is worth debating, but if ideology and incompetence leave us with neither freedom nor security, then the need for debate ends.  

Neither freedom nor security?  Historians may later call that the “Obama Doctrine.”  



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