01/31/2014 08:48 am ET Updated Dec 06, 2017

The Benefits from Government Surveillance Are Not Relevant!

Click here for the NPR TED Radio Hour segment on privacy and the TEDTalks that inspired this post.

The government justifies the NSA data center (which Mikko Hypponen describes as five times larger than the largest IKEA store) on the basis that the information gathered and stored is essential to national security. When the fact that the United States had engaged in torture was revealed, Dick Cheney sought to justify it ---by the much disputed claim---that it produced important results in the fight against terrorism. Describing it as "enhanced interrogation" did not make it right, and whether or not it resulted in usable information is irrelevant. Torture is illegal. Both President Bush and President Obama contend that numerous terrorists' attacks were discovered and prevented by virtue of the existing government surveillance programs. However, the Privacy and Civil Liberties Oversight Board created by Congress disputes these contentions and suggests that there is not a single instance to support that claim.

But assuming that they are true, should it make any difference? Do we test constitutionality by determining whether or not there is some benefit derived from its violation? As Mikko Hypponen clearly points out, the present system searches the innocent in order to find the guilty, something our Constitution has never tolerated.

Do we test constitutionality by determining whether or not there is some benefit derived from its violation? -- Judge H. Lee Sarokin

I can think of numerous instances in which violating the Constitution would generate benefits. Certainly violation of the 4th Amendment (which prohibits certain searches and seizures) would produce enormous benefits. More evidence would be obtained; more convictions would result; more criminals would be incarcerated and off the streets.

The same goals could be achieved by violating the 5th Amendment and compelling persons to incriminate themselves. Eliminate jury trials and save billions in time and money. The list is endless. Violate free speech and reap the benefits of less Ann Coulter and Rush Limbaugh venom. Ironically, actual deaths of tens of thousands of our citizens annually from guns fails to move the government to act, but the possibility of deaths from terrorists is justification for the biggest of Big Brothers.

I have little doubt that the more government surveillance we have, the greater our security. I also suspect that if we could have it and didn't, we might look back with regret after another attack. But we cannot delude ourselves about this discussion. If the conduct is unconstitutional, it does not become constitutional because it generates something of value. The greatest danger lies in public apathy to this creeping government surveillance. The reaction that people are unaffected and indifferent because they have nothing to hide is something they will someday come to rue.

Yes, there are gains to be derived from violating the Constitution, but there is much more to be lost.

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