Well, in the last two days much has come to light about what the government has been doing, supposedly in the cause of protecting us from terrorism. Some we already knew, for example the fact that agencies were collecting and storing bulk phone data. But we did not know the FBI has been using over 100 small planes under fictitious company names to watch what is happening from the air in over 50 cities. This too is justified in the name of terrorism and crime fighting. I am sure there is much we still do not know and Federal agencies would like to keep it that way.
Besides that, we now discover that the TSA can’t really do what it is supposed to do. Apparently the inspectors and their vaunted technology missed about 94% of the fake bombs that “testers” brought to airports. The head of the TSA has been promptly demoted–he would have been fired if he worked for a private firm.
So what does all this have to do with Woodrow Wilson and his ghost–he has been dead 91 years. If you remember (or knew), Wilson was famous among political scientists at least for advocating a government largely administered (not governed, but that distinction has been lost) by “experts” or “professionals” who were trained and completely unbiased (OK, laugh now) in their operation, working according to strict rules. That was supposed to get us efficient administration that accomplished what the “political masters” (Congress, legislatures, etc.) wanted. In the 1930s the Federal courts began to sanction these kinds of actions. The government was given very wide latitude. And that was all supposed to be good for us–“don’t-ask-any-questions-just-take-your-medicine” kind of good. Over 100 years, what has that advice gotten us? By the way that advice has been pretty universally adopted by legislative bodies everywhere. Have a problem or a perceived problem or just some issue you can use for political gain? Let’s make a law and then establish some bureaucratic agency populated with “experts” to administer the law.
So for example, immediately after 9/11 we were given, with not enough deliberation, the Patriot Act. We were additionally given (I use the word advisedly) the Transportation Safety Administration. We also got a bigger National Security Agency with many more powers. Then Congress “turned the agencies loose” to write their own rules and regulations, since, you guessed it, they after all, were the experts and knew better than us ignorant citizens what to do. They wrote their rules and we ended up with two things. First, we saw incredibly useless and invasive screening procedures administered by employees whose incentive structure was not shall we say imbued with customer service. At the top of the agency apparently the bureaucrats either had some friends to repay or
were just to stubborn ( I will be nice) to learn from others overseas. The TSA installed expensive technology that doesn’t screen very well and that does invade privacy. But worse, the agents themselves were seemingly trained to utilize the most useless techniques possible and to do it with the worst possible demeanor. Why for example did they consistently insist on stopping and humiliating veterans in wheelchairs? Are they likely terrorists? Doesn’t Israel use a modified profiling? I think that has worked very well–but the US officials don’t seem to care.
The NSA, FBI and CIA have in the meantime really gone “whole hog” to snoop on just about everyone except terrorists. I have friends who insist the NSA does not (because it cannot) actually read the content of phone messages, computer e-mails, etc. Well, I am sorry, but first, I know they can get the content of phone calls–that has been happening for decades with old technology and it undoubtedly occurs on a much larger scale today. As for e-mails, I can’t say. But I don’t know that I can trust what they tell me either.
Homeland Security spends billions to do nothing to stop illegals at the border, among whom are likely potential terrorists. And then they spend other billions to harass citizens inside the US borders. Everyday, children of some towns in Arizona and Texas have to put up with stops, searches and harassing language.
In the meantime judges appear to have sanctioned all or most of this activity. How are WE to think about it? First, I realize there is a balance to be found between security and civil liberties. But second, even if we can find that balance easily, the means to achieve it is open to debate. We have chosen (“we” as in the imperial we) huge and largely unaccountable bureaucratic agencies which either defy oversight or which are just left alone by Congress (until now). Is this the way to provide security as a public good? Are there better ways and can we find them? More than that, how do we incentivize government officials to look for better ways? And how can we return to a constitutionally faithful approach to national security? Somehow the courts must take a more aggressive role in protecting Fourth Amendment rights and other rights. I don’t believe this means sacrificing security. I do believe we haven’t thought any of this through very well.
What then should be done? First, I would suggest a serious re-evaluation of the TSA. More than likely, what it does could be privatized with some oversight (but not so much that innovation is stifled). If not privatized, it ought at least be forced to innovate, with targeted threats to its budget. Threats should in the main be directed to the agency heads so that they will feel the pressure and do something. Their outcome measures should drive the evaluation, not input measures. For example, responsiveness to the direct “consumers” has to be taken seriously as an outcome to be measured, even if imperfectly. And privacy and convenience should also be factors. Inputs are of course useful. The focus here should be on how TSA conducts screening, and then we can hopefully measure the outcomes of these different institutional approaches. Perhaps even introducing competition by fragmenting the agency might be useful.
On the other hand, the NSA is a more intractable problem, because it is so surrounded in secrecy and is so intertwined with national security and foreign relations. National security is also a very big task and does require a large scope of operation. This in turn does require a national scale of provision. The problem is the Congress has more or less abdicated its legislative and oversight functions, giving them to large agencies. And the courts have unfortunately allowed an expansive scope for agency actions. Even when judges are required by law to issue warrants or approve policies of say the NSA, they are so deferential that the agencies may do almost anything they wish. The congressional and judicial inaction, combined with executive collusion, make for a potentially oppressive outcome in the name of national security. Even if security is provided, it is not necessarily provided as well as it could be, as the agency’s incentives may deviate far from those of Congress or the people.
I do not propose that the Patriot Act be rescinded. But I tend to lean to Rand Paul’s ideas that we must have significant checks on government action while preserving our civil liberties. A balance means just that, not a skewed favoritism toward large and unaccountable bureaucracies.