In recent days, writers for the libertarian magazine Reason have taken a few shots at me (here, here, and here) for my alleged misdeeds of ten years ago. (And here I thought Eliot Spitzer had a long memory.) They say that I bashed Reason for saying that the Patriot Act authorized spying on the web browsers of innocent Americans, that time has proven them right and me wrong, and that the whole saga illustrates the general truth that only libertarians are trustworthy analysts of threats to freedom, everyone else being a rank partisan.
The Reasoners think that all of this is so self-evidently correct that they haven’t spelled out which of the following two views they take: 1) The Patriot Act authorizes everything the NSA has been doing, for example treating all telephony metadata involving U.S. phone numbers as a business record relevant to the investigation of terrorism. 2) The Patriot Act does not authorize what the NSA has been doing, but this abuse was foreseeable and the law should therefore not have been passed.
If Reason takes view No. 1, then I don’t see how recent events have proven its case at all. I don’t think the NSA surveillance program is authorized by statute, any more than Representative Jim Sensenbrenner does. The Foreign Intelligence Surveillance Court seems to me to have stretched the law beyond any plausible reading of it. If Reason disagrees, then I oppose the program for one more reason than it does.
If Reason takes view No. 2, on the other hand, it’s not clear what its beef is with me. My back-and-forth with writers for Reason ten years ago had nothing to do with a potential-for-abuse argument; it was about what the text of the Patriot Act authorized.
I thought some of the articles in Reason ten years ago made provisions of the Patriot Act seem worse than they were, and wrote as much. That doesn’t mean, as Reason editor Matt Welch would have it, that I’m “a surveillance-state enthusiast.” I’m not a fan of the kind of all-or-nothing thinking about civil liberties and national security that his comment exemplifies. But I’m against what the NSA has been doing, and have written that too. I’d be perfectly happy to be an ally of Reason on this question, if it’s willing to quit trying to settle scores so old it doesn’t remember them clearly.