The conservative movement now seems to have split itself on the question of NSA domestic surveillance. Some conservatives, mindful only of external threats, want it to go on. (Or maybe they haven’t thought the matter through.) Others, mindful of the new domestic threat the Obama administration poses, want it to stop. This debate gives a prize example of how to balance liberty and safety.

NSA domestic surveillance: in court

Larry Klayman, head of Judicial Watch, sued the government twice over the NSA domestic surveillance program by the National Security Agency. At issue: the NSA collects metadata, or information on the number and time span of calls that any person makes or gets. Last week (December 17, 2013), Judge Richard J. Leon enjoined that part of the program. (Klayman v. Obama) He said Mr. Klayman and his fellow plaintiffs:

1. Have standing to sue,
2. May well prevail, and
3. Would suffer irreparable harm should the NSA domestic surveillance program go on.

Andrew C. McCarthy of National Review does not agree. He cites an earlier Supreme Court precedent, Smith v. Maryland. In that case, the Court held that telephone company records, like modern mobile telephone metdata, belong to the telephone company, not to the subscriber. Judge Leon held that Smith no longer applied. He said recent technological change out-dates Smith. (The Smith case involved a landline, not a mobile telephone.) McCarthy seems to think Judge Leon had no grounds for saying so.

A White House commission report that came out two days later, might make the Klayman cases moot. That report, Liberty and Security in a Changing World, recommends scrapping all NSA domestic surveillance. McCarthy lamented that the Obama administration didn’t make the case for extensive foreign and domestic surveillance. Worse, the panel are skeptical that such far-reaching NSA domestic surveillance ever nabbed a single terrorist. So, says McCarthy, the program may die before it ever comes to judicial review.

Why that program should die

Headquarters of the NSA at Fort Meade, Maryland.

McCarthy makes too much of the Smith precedent. The Supreme Court has reversed itself many times in its history. Brown v. Topeka Board of Education is the prize example, in its reversal of Plessy v. Ferguson. Then, too, the Court failed to reverse itself in one tragic case, Scott v. Sandford. If it had, and in time, it might have prevented the War Between the States.

The bravest of Constitutional lawyers, are not afraid to tell the Supreme Court of the United States, “You should change your rule.” Mr. Klayman, in his inevitable response brief, will probably need to do more than cite Judge Leon’s opinion that Smith is out-of-date. He needs to show that the Court erred in Smith and now has the chance to correct that.

That case should be easy. McCarthy seems to think the decision to collect first and get the warrant to examine later, should be a political decision, with a strong imperative. But courts exist to rein in the passions of the mob. As I write this, someone is making a political case that Mr. Phil Robertson, the patriarch of the Duck Dynasty program, should suffer some kind of sanction under the law. Now imagine if politics alone would be enough to justify such a sanction. What, then, of the clear language in the Constitution:

No bill of attainder or ex post facto law shall be passed.

McCarthy grudgingly conceded Obama didn’t make the case to uphold the program. He should say Barack Obama destroyed the case for the NSA domestic surveillance program by pouring contempt on the liberties of the people. He ordered the Commissioner of Internal Revenue to attack Tea Party and other conservative groups so he could win re-election. He now brazenly orders the IRS to make a rule that might as well be a bill of attainder against conservatives everywhere. He delayed several regulations until after the election, again to win it. His Department of Homeland Security buys up billions of rounds of ammunition. His Environmental Protection Agency shuts down the last lead smelter, again to diminish the supply of ammunition.

If I begin to sound like Thomas Jefferson setting forth “a history of repeated abuses and usurpations,” maybe the reader can understand now what’s wrong with the NSA domestic surveillance program.

A proverb from the Seventies reads,

A conservative is a liberal who got mugged.

Well, as Tom Wolfe (The Bonfire of the Vanities) said,

A liberal is a conservative who got arrested.

Make that “libertarian,” not “liberal.” Such a person is a conservative who knows his political antithesis and nemesis knows how many telephone calls he made, and whom to, and suddenly all those people will face IRS audits on his account.

Benjamin Franklin faced a similar dilemma during the French-Indian War: whether to recommend sending a regular army to the frontier. Instead he recommended telling the frontiersmen to arm themselves. He was even willing to buy guns for them with the money that keeping a standing army in the region would cost. To justify that choice, he famously wrote,

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.

A lesson worth remembering today.

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