The Corner

The NSA Programs and the Federal Data Hub

John Fund’s report this morning, “Obamacare’s Branch of the NSA,” is about the Federal Data Hub, and it is crucially important. I hope it gets the wide dissemination it deserves. As a conservative who favors limited government but defends the NSA national-security programs, I’d like to make a few observations about the points John makes.

Those of us who have argued in favor of the NSA programs stress the following points:

(1) Unlike the other things Leviathan does (but should not do), national security is the federal government’s ne plus ultra.

(2) Americans do not have a Fourth Amendment privacy right to shield phone usage records that belong to a third-party, and non-Americans outside the U.S. do not have constitutional rights, period – not against data-collection or eavesdropping.

(3) The absence of constitutional protections is not dispositive of any privacy question; it simply means that any additional privacy safeguards must be enacted by Congress, not by warping the Fourth Amendment.

(4) The NSA programs operate under such a regimen of significant congressionally-mandated safeguards: e.g., government may only collect data, it may not be inspected without court oversight, data must be purged every five years, etc.

(5) The most important components of these safeguards are the principles of separation-of-powers and non-politicization of national security – i.e., there is extensive judicial and congressional oversight over the NSA’s data-collection; and even on the executive branch side, the data must be handled by specially trained intelligence agents, not political appointees.

I flesh these points out because the horrifying Federal Data Hub (FDH) proposal has precious little in common with the NSA program. Indeed, FDH appears to feature all of the downsides that NSA naysayers justifiably fear about the NSA programs without the benefits or safeguards.

First and foremost, FDH is not a national security program. There is only one reason we abide the kind of data-collection the NSA is doing: it materially furthers performance of a core obligation of the national government (viz., to protect Americans from foreign threats, during a time when Congress has authorized wartime operations against international jihadists). Even with that limitation, there are a lot of very thoughtful people forcefully contending that we should not allow it. In any event, there is no comparable imperative that justifies governmental data collection and inspection in the area of health-care – something in which the federal government should not even be involved, much less have a controlling role.

Second, a major point of the NSA collection is to ensure that the information is preserved in the unlikely event it is ever needed in connection with a terrorism investigation. Only an infinitesimal percentage of the data gathered is ever reviewed. And while the law makes it easy to collect and store the data, it quite intentionally makes it difficult for government to inspect the data – requiring court authorization after a showing of reasonable suspicion of wrongdoing (mainly, terrorist activity). And, to repeat, the law further discourages unwarranted privacy invasions by requiring the executive branch to provide Congress with periodic, exhaustive reports. By contrast, the whole point of the FDH appears to be to make the extensive data collection readily available for executive branch review. It is a wide open door to the very governmental abuses that Congress, the FISA Court, and the NSA labor mightily to avoid.

Third, the NSA program is run by intelligence professionals who are subjected to extensive background checks in order to earn very high clearance for access to highly classified information. In stark contrast, the FDH will be accessed by “patient navigators” – community organizers by another name – who will have been subjected to woefully inadequate background checks and be given laughably insufficient training. It is, as John puts it, “like giving someone a first-aid course and then making him a medical school professor.” As Senator Orrin Hatch observes, it could easily result in felons being underwritten by tax dollars to pore over confidential taxpayer information.

Finally, what on earth are House Republicans doing? Why are tax dollars being used to fund active recruitment into federal welfare and benefits programs?

It is one thing to contend that there should be a decent social safety net and that it should be run by the federal government. I concede that I believe the federal government should have no role in such enterprises – they ought to be left to the states and private entities. But even though I don’t agree, I get why many Americans are convinced that this is a necessary and proper function for Washington. Fine. But the public has no interest in maximizing dependency and expanding the dependency class. Only elected Democrats and government bureaucrats have such an interest, in order to maintain their power and justify the metastasizing breadth of government. So why are we funding it?

It is hard to turn on a radio or television anymore and not be beaten over the head with commercials about all the swell things the government is doing and the all the many programs for which we may be eligible. Why are we paying for this? The idea is supposed to be that if people are down on their luck, it is on them to explore their welfare options. Why do we permit government officials to try to convince people that they are down on their luck and should be seeking public assistance?

Republicans are in control of the House. They will tell you that they are not complicit in the dependency expansion campaign, but they are – undeniably. Under the Constitution, the government cannot tax Americans in order to spend on government programs unless the House not only approves but originates the raising of revenue. None of the Left’s dependency expansion initiatives could advance unless the Republican-controlled House voted to continue them.

Why doesn’t the House stop taking pointless votes to repeal Obamacare and just use the power they have to decline to fund it? If Republicans really want to repeal Obamacare, why did they allocate $54 million in public funds to hire and train “patient navigators” – left-wing Obamacare promoters – to beef up Obamacare enrollment? And that’s just the tip of the iceberg. Obamacare implementation is costing billions, and the more implementation Congress pays for, the less likely Obamacare will ever be repealed.

There is a compelling national security case for the NSA programs. It will be overwhelmed, though, if they come to be seen as precedents for the expansion of a prying, politicized surveillance and dependency state.


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