Here’s an interesting back-and-forth on surveillance reform in the Los Angeles Times. I found the arguments against modifying the PATRIOT Act frustrating, not least because they don’t seem all that responsive to the civil libertarian case for additional safeguards. But this throwaway line from the Heritage Foundation analyst defending the PATRIOT Act really got my goat (emphasis mine):
If investigators are sloppy, by all means, use the legal powers already in place as a remedy. There are adequate safeguards on the books to stop this, and they should be used. But the Patriot Act is not an example of abuse; it is an example of success. The lack of terrorist attacks since 9/11 and the absence of actual abuses stand as mute but powerful witnesses to the law’s effectiveness.
Now, the first part of this argument – that very few PATRIOT-related abuses have actually occurred – just seems factually wrong. Moreover, specific instances of abuse were repeatedly pointed out by her pro-reform interlocutor (Julian Sanchez), who also notes that the nature of counter-terrorism surveillance makes it less likely that abuses are reported. But to be fair, I’m no surveillance expert, so maybe these incidents are so trivial or so rare that they don’t represent any serious threat to civil liberties.
The notion that the absence of terrorist attacks since 9/11 counts as prima facie evidence that our surveillance infrastructure works, however, is as an argument that deserves to be permanently retired.
We don’t know why we haven’t been attacked since 9/11. Maybe it’s because Al-Qaeda fears another retaliatory military strike. Maybe we’ve disrupted potential terrorist attacks overseas. Maybe our national security establishment has systematically over-estimated the scope of the terrorist threat. Maybe the vast majority of nascent terror operations in the United States are carried out by bungling incompetents.
I don’t know if these hypotheses are correct, but they’re at least as plausible as the idea that our all-knowing, incredibly competent domestic security apparatus has foiled terrorist plot after terrorist plot since 9/11. And I think it’s telling that PATRIOT Act defenders have to rely on a made-up chain of causation to justify ignoring civil libertarian concerns.