Rand Paul: How the White House and NSA's Verizon Surveillance tramples Constitution

Rand Paul

The Guardian, Thursday 6 June 2013

In December 2007, then-Senator Barack Obama joined then-Senator Chris Dodd in threatening to filibuster the Foreign Intelligence Surveillance Act (Fisa). Senator Obama opposed provisions granting retroactive immunity to telecommunications companies that shared private client information with the government. His office released a statement:

"Granting such immunity undermines the constitutional protections Americans trust the Congress to protect. Senator Obama supports a filibuster of this bill …"​

Senator Obama was right. Had I been in the Senate, I would've voted with him. I've even filibustered myself over civil liberties issues I believe are important.

Later, supporting an amendment that he believed repealed retroactive immunity from Fisa, Senator Obama said in February 2008:

"We can give our intelligence and law enforcement community the powers they need to track down and take out terrorists without undermining our commitment to the rule of law, or our basic rights and liberties."​

Senator Obama in 2007 was rightly concerned that telecommunications companies might get away with sharing clients' private information without legal scrutiny. This week, we learned that the president's National Security Agency compelled Verizon to hand over all of its client data records.

Senator Obama in 2008 wanted to track potential terrorist activity "without undermining our commitment to the rule of law, or our basic rights and liberties". Today, President Obama undermines the rule of law, basic rights and core liberties – all in the name of tracking terrorists.

There is always a balance between security and liberty and the American tradition has long been to err on the side of liberty. America's founders feared a government powerful enough to commit unreasonable searches and seizures and crafted a constitution designed to protect citizens' privacy.

Under this administration, the Internal Revenue Service (IRS) has targeted political dissidents, the Department of Justice has seized reporters' phone records, and now we've learned the NSA seized an unlimited amount of Verizon's client data. Just when you think it can't get any worse under this president, it does. This is an all-out assault on the constitution. These actions are unacceptable under any president, Democrat or Republican.

I can remember well a Senator Obama who joined the Democratic chorus against the warrantless wiretapping of the Bush administration. Now, that chorus has gone mute. The Guardian's Glenn Greenwald has noted what he sees as "a defining attribute of the Obama legacy: the transformation of what was until recently a symbol of rightwing radicalism – warrantless eavesdropping – into meekly accepted bipartisan consensus."

Not every Republican or Democrat is part of that consensus. When the Senate rushed through a last-minute extension of the Fisa Amendments Act over the holidays late last year, Senator Mike Lee (Republican, Utah) and I offered an amendment requiring stronger protections on business records that would've prohibited precisely the kind of data-mining the Verizon case has revealed. Senator Ron Wyden (Democrat, Oregon) introduced an amendment to require estimates from intelligence agencies of how many Americans were being surveilled. Both these measures were voted down.

Just last month, I introduced the Fourth Amendment Preservation and Protection Act, which if enacted would've protected Americans from exactly the kind of abuses we've seen recently. It was also voted down.

On Thursday, I announced my Fourth Amendment Restoration Act of 2013, which ensures that no government agency can search the phone records of Americans without a warrant based on probable cause. We shall see how many join me in supporting a part of the Bill of Rights that everyone in Congress already took an oath to uphold.

If the president and Congress would simply obey the fourth amendment, this new shocking revelation that the government is now spying on citizens' phone data en masse would never have happened. That I have to keep reintroducing the fourth amendment – and that a majority of senators keep voting against it – is a good reflection of the arrogance that dominates Washington.

During my filibuster, I quoted Glenn Greenwald, who wrote:

"There is a theoretical framework being built that posits that the US government has unlimited power. When it comes to any kind of threats it perceives, it makes the judgment to take whatever action against them that it warrants without any constraints or limitations of any kind."​

If the seizure and surveillance of Americans' phone records – across the board and with little to no discrimination – is now considered a legitimate security precaution, there is literally no protection of any kind guaranteed anymore to American citizens. In their actions, more outrageous and numerous by the day, this administration continues to treat the US constitution as a dead letter.

Senator Obama said of President Bush and Fisa in 2008:

"We must reaffirm that no one in this country is above the law."​

No one in America should be above the law. Including this president.

Lesser of two evils got you this.

Do not vote for one of these people again. Throw away your vote, but do not support them!!

I was going to dismiss this, but you used two exclamation points. I'm sold.

Leaking Secrets Empowers Terrorists
The NSA's surveillance program doesn't do damage. Revealing it does.

By MICHAEL B. MUKASEY

Once again, the tanks-have-rolled left and the black-helicopters right have joined together in howls of protest. They were set off by last week's revelations that the U.S. government has been collecting data that disclose the fact, but not the content, of electronic communications within the country, as well as some content data outside the U.S. that does not focus on American citizens. Once again, the outrage of the left-right coalition is misdirected.

Libertarian Republicans and liberal—progressive, if you prefer—Democrats see the specter of George Orwell's "1984" in what they claim is pervasive and unlawful government spying. These same groups summoned "1984" in 2001 after passage of the Patriot Act, in 2008 after renewal of the Foreign Intelligence Surveillance Act, or FISA, and many times in between and since.

Regrettably, those best positioned to defend such surveillance programs are least likely to do so out of obvious security concerns. Without getting into detail here, intelligence agencies, with court authorization, have been collecting data in an effort that is neither pervasive nor unlawful. As to the data culled within the U.S., the purpose is to permit analysts to map relationships between and among Islamist fanatics.

For example, it would be helpful to know who communicated with the Tsarnaev brothers, who those people were in touch with, and whether there are overlapping circles that would reveal others bent on killing and maiming Americans—sort of a terrorist Venn diagram. Once these relationships are disclosed, information can be developed that would allow a court to give permission to monitor the content of communications.

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Associated Press
Intelligence surveillance aided in the capture of Najibullah Zazi, who was convicted in New York on terrorism-related charges in 2010.

As to monitoring content abroad, the utility is obvious. At least one conspiracy—headed by Najibullah Zazi and intended to maim and kill New York City subway riders—was disclosed through such monitoring and headed off. Zazi, arrested in 2009, pleaded guilty and awaits sentencing.

Because intelligence does not arrive in orderly chronological ranks, and getting useful data is an incremental process that often requires matching information gathered in the past with more current data, storing the information is essential. But, say the critics, information in the hands of "the government" can be misused—just look at the IRS. The IRS, as it happens, has a history of misusing information for political purposes. To be sure, there have been transgressions within intelligence agencies, but these have involved the pursuit of an intelligence mission, not a political objective.

Consider also that in a post-9/11 world all of those agencies live in dread of a similar attack. That ghastly prospect itself provides incentive for analysts to focus on the intelligence task at hand and not on political or recreational use of information. And the number of analysts with access to the information is not terribly large. The total number of analysts in the intelligence community, though certainly classified, appears to be a few thousand, with those focusing on terrorism likely a limited subset.

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Editorial page editor Paul Gigot on whether leaks about the National Security Agency’s surveillance program are empowering terrorists and undermining intelligence gathering efforts. Photos: Getty Images

Given the nature of the data being collected and the relatively small number and awful responsibility of those who do the collecting, the claims of pervasive spying, even if sincere, appear not merely exaggerated, but downright irrational. Indeed, psychiatry has a term for the misplaced belief that the patient is the focus of the attention of others: delusions of reference.

Some wallow in the idea that they are being watched, their civil liberties endangered, simply because a handful of electrons they generated were among the vast billions being reviewed in a high-stakes antiterrorism effort. Of course, many are motivated politically or ideologically to oppose robust intelligence-gathering aimed at fending off Islamist terrorism. Criticism from that quarter can be left to lie where it fell.

All of that being said, it is at least theoretically possible that information could be misused to the prejudice of innocent citizens, which would be both a shame and a crime. But it makes about as much sense to deny intelligence agencies access to information necessary to defend the nation because some of that information theoretically could be misused as it does to deny guns to police because they could be turned on the innocent.

Nor do these programs violate the law. Start with the Constitution. The applicable provisions lie in two clauses in the Fourth Amendment. The first bars "unreasonable searches and seizures." The second provides that "no Warrants shall issue, but upon probable cause" established by affidavit, and it requires that warrants describe with particularity what or who is to be seized, and from where.

Notice that the first clause does not forbid warrantless searches, only unreasonable ones. And the second simply creates a warrant requirement that is read, with some exceptions, to bar evidence at trial if it is obtained without a valid warrant. The first clause has been read to protect the content of communications in which the speaker has a reasonable expectation of privacy—telephone conversations being an obvious example. It does not protect the fact of communications. Even in routine cases, prosecutors may obtain permission from a court to monitor the source of incoming calls and the destination of outgoing calls, as well as their date and duration, solely by averring that the information has to do with a criminal investigation.

The Founders were practical men who understood the need for secrecy. Indeed, they drafted the Constitution with windows and doors closed against prying eyes and ears even in sweltering summertime Philadelphia, lest their deliberations be revealed—not only prematurely, but at all. They realized that the free exchange of ideas was crucial to the success of their awesome project, and that it could only be inhibited by the prospect of disclosure, whether future or present.

They also understood that the nation could not survive without preserving its secrets. Article I, Section 5 of the document they created requires that "Each House . . . keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy." The Founders well understood the difference between government by consent and government by referendum.

Even zealots do not dispute that the Patriot Act, as amended, authorizes the Foreign Intelligence Surveillance Court that was established under FISA to grant permission to gain access to the information at issue here. As to intercepting the content of foreign communications, I think it is best put starkly: The Constitution and U.S. laws are not a treaty with the universe; they protect U.S. citizens. Foreign governments spy on us and our citizens. We spy on them and theirs. Welcome to the world.

Real damage was done last week by Edward Snowden, who on Sunday claimed credit for leaking the secrets he learned while working for NSA contractors. Every time we tell terrorists how we can detect them, we encourage them to find ways to avoid detection.

Further, the current administration's promiscuous treatment of national secrets suggests that the current disclosures will beget others. Recall the president's startling boast in May 2011 that Osama bin Laden's hideout had yielded a trove of valuable intelligence, which alerted anyone who had dealt with bin Laden and thereby rendered much of that material useless. Recall the June 2012 newspaper stories describing U.S. participation in implanting a malware worm called Stuxnet in Iran's nuclear facilities, reports that even described White House Situation Room deliberations. And summon to mind also the president's obvious discomfort as he defended—sort of—the programs now in question. There is little doubt that we will be treated to further disclosures to prove that these programs were successful.

If the current imbroglio opens an honest discussion of the legitimate need for secrecy in a fight against seventh-century primitives equipped with 21st-century technology, it may eventually prove to have been worth the cost, but I'm not laying down any bets.

Mr. Mukasey served as U.S. attorney general (2007-09) and as a U.S. district judge for the Southern District of New York (1988-2006).

I don't understand how this administration can have scandal after scandal each worse than the previous yet there seems to be no outrage. But Bush who is also a complete moron and criminal got destroyed for everything that happened from Katrina to the lack of WMD in Iraq.

Playmaker said:

I don't understand how this administration can have scandal after scandal each worse than the previous yet there seems to be no outrage. But Bush who is also a complete moron and criminal got destroyed for everything that happened from Katrina to the lack of WMD in Iraq.

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The difference now is you don't have most media sources pounding the President without mercy day after day. Bush certainly deserved plenty of criticism, but the media would find a way to blame him for anything and everything. Obama mostly gets a pass. Current coverage is shifting somewhat, but most media is still very reluctant to directly lay into Obama for these scandals. The people that barely pay attention and rely on popular media to know what they're supposed to think simply don't know what's going on or they've been convinced everything is business as usual and there's no need to worry.

Donpingon said:

The NSA's surveillance program doesn't do damage.

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Wrong.

As to the data culled within the U.S., the purpose is to permit analysts to map relationships between and among Islamist fanatics.

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... until it's not for that purpose anymore.

For example, it would be helpful to know who communicated with the Tsarnaev brothers, who those people were in touch with, and whether there are overlapping circles that would reveal others bent on killing and maiming Americans—sort of a terrorist Venn diagram. Once these relationships are disclosed, information can be developed that would allow a court to give permission to monitor the content of communications.

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Great. Get a warrant and find that information out. No Judge in the country would deny you the right to go get either one of those brothers' phone records.

Because intelligence does not arrive in orderly chronological ranks, and getting useful data is an incremental process that often requires matching information gathered in the past with more current data, storing the information is essential. But, say the critics, information in the hands of "the government" can be misused—just look at the IRS. The IRS, as it happens, has a history of misusing information for political purposes. To be sure, there have been transgressions within intelligence agencies, but these have involved the pursuit of an intelligence mission, not a political objective.

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Is this guy serious? The CIA, NSA and FBI have NEVER carried out missions for political purposes?

And even if that was true, what's to stop them from using it for a political purpose in the future like the IRS has?

Their high moral fiber, I guess.

Some wallow in the idea that they are being watched, their civil liberties endangered, simply because a handful of electrons they generated were among the vast billions being reviewed in a high-stakes antiterrorism effort. Of course, many are motivated politically or ideologically to oppose robust intelligence-gathering aimed at fending off Islamist terrorism. Criticism from that quarter can be left to lie where it fell.

All of that being said, it is at least theoretically possible that information could be misused to the prejudice of innocent citizens, which would be both a shame and a crime.

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In other words, "This whole article has been one big apologetic shill for the NSA and the government to do whatever it wants, but yes, it is possible that this could be abused and therefore all the concerns that I just told you not to be concerned about are actually legit."

But it makes about as much sense to deny intelligence agencies access to information necessary to defend the nation because some of that information theoretically could be misused as it does to deny guns to police because they could be turned on the innocent.

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No one is flatly denying them. Get a warrant, asshole.

There's not a Constitutional amendment that says Police can't have guns, is there? There is, however, an amendment which says you can't conduct unreasonable searches (which means any search without a warrant or probable cause).

Nor do these programs violate the law. Start with the Constitution. The applicable provisions lie in two clauses in the Fourth Amendment. The first bars "unreasonable searches and seizures."

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... and the Courts have held that searches without a warrant are unreasonable where there is no reasonable suspicion or probable cause.

So they do violate the law if the search happens without such cause. Try explaining how the government has probable cause to search every single person.

The second provides that "no Warrants shall issue, but upon probable cause" established by affidavit, and it requires that warrants describe with particularity what or who is to be seized, and from where.

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Right. So if you have a guy you want to look at, explain the reason why he is a suspect to a judge and have the judge ok it.

Notice that the first clause does not forbid warrantless searches, only unreasonable ones.

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Warrantless searches are unreasonable without probable cause or one of the other very limited exceptions, of which "counter terrorism" is not one, ya liar.

Even in routine cases, prosecutors may obtain permission from a court to monitor the source of incoming calls and the destination of outgoing calls, as well as their date and duration, solely by averring that the information has to do with a criminal investigation.

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S

So get permission in each and every case then. But no one would believe you're conducting a "criminal investigation" of a blanket 300 million citizens.

The Founders were practical men who understood the need for secrecy. Indeed, they drafted the Constitution with windows and doors closed against prying eyes and ears even in sweltering summertime Philadelphia, lest their deliberations be revealed—not only prematurely, but at all. They realized that the free exchange of ideas was crucial to the success of their awesome project, and that it could only be inhibited by the prospect of disclosure, whether future or present.

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Now he contradicts his own point.

The Founding Fathers were hiding behind "closed doors and windows" as he puts it, precisely for the purpose of hiding that information FROM THE GOVERNMENT. The very thing he is now saying the government should be able to do.

So.... if you had the same standards now as back then, there is no America.

Even zealots do not dispute that the Patriot Act, as amended, authorizes the Foreign Intelligence Surveillance Court that was established under FISA to grant permission to gain access to the information at issue here. As to intercepting the content of foreign communications, I think it is best put starkly: The Constitution and U.S. laws are not a treaty with the universe; they protect U.S. citizens. Foreign governments spy on us and our citizens. We spy on them and theirs. Welcome to the world.

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No one cares if you spy on foreigners. We care if you spy on Americans.

Recall the president's startling boast in May 2011 that Osama bin Laden's hideout had yielded a trove of valuable intelligence, which alerted anyone who had dealt with bin Laden and thereby rendered much of that material useless.

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Yeah... it was an Obama press conference that tipped off the terrorists that when the Seals stormed his house, they got information on his network. I'm sure the other terrorists wouldn't have realized that the Seals would gather information from the house they just raided. Damn Obama tipping them off!

Mr. Mukasey served as U.S. attorney general (2007-09) and as a U.S. district judge for the Southern District of New York (1988-2006).

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Sad that people with such contempt for what the law says can get into these positions. But then even our Presidents and many Supreme Court Justices have not understood the Constitution, or hated what it said so much that they'd fabricate interpretations to get their way.

YPS

These ex-Bush national security people that keep telling us not to worry because they're only looking for terrorists are full of shit. If information on everyone is collected eventually it will be accessed and ultimately abused. Maybe not by this administration or the next one, but it will happen. It goes completely against human nature to collect a vast trove of information and then do nothing with it.

If the threat of terrorism is so great that we have to completely trash our Constitution then we should be engaging in total war, nuking the middle-east, and attempting to eradicate Islam since that's where the problem originates. If it's not serious enough to do all that then the government really doesn't have any business downloading my emails.

Sen. Rand Paul's Lonely Crusade Against NSA Spying

Sen. Rand Paul has sponsored a bill that would curb the National Security Agency's ability to search phone records. Not a single other U.S. senator has signed on, and that's good news for Rand Paul.

While the Washington establishment is fleeing a direct confrontation with the Obama administration over a slew of secret surveillance programs that raise questions about privacy, the Senate's resident Tea Party libertarian aggravator is reveling in the relative solitude.

Now that both political parties have a hand in supporting national security policies that appear more aimed at catching terrorists than protecting privacy, the NSA scandal is the perfect playing ground for a senator with presidential ambitions who is building a brand as an equal opportunity agitator.

"The revelation that the NSA has secretly seized the call records of millions of Americans, without probable cause, represents an outrageous abuse of power and a violation of the Fourth Amendment to the Constitution. I have long argued that Congress must do more to restrict the Executive's expansive law enforcement powers to seize private records of law-abiding Americans that are held by a third-party," Paul, a Republican, said when introducing his bill, the "Fourth Amendment Restoration Act of 2013."

The strategy keeps intact Paul's reputation as a "disruptive" politician, as conservative pundit Erik Erickson has coined it.

"With the exception of Sen. Rand Paul, the GOP has left the playing field on this vital issue," wrote one contributor to the conservative online community Red State. "They are afraid of being called hypocrites over '!GEORGE W. BUSH'S USA PATRIOT ACT!' And for evil men to triumph, the good men have to only do nothing."

Few in Washington are running to the defense of NSA leaker Edward Snowden, even if they harbor concerns that the government may have overreached.

Democrats are hesitant to criticize policies advocated by a president of their own party. And even the ones who have raised questions about the scope of the policy aren't clamoring in outrage.

Remember Al Franken, now Democratic senator from Minnesota, and author of the liberal manifesto "Lies and the Lying Liars who Tell Them"?

As recently as 2012, Franken raised concerns that it was "too easy" for companies to hand over their customers' personal information . Now, he says he is comfortable with the program.

"This isn't about spying on the American people," Franken told Minnesota station WCCO. "I have a high level of confidence that this is used to protect us. And I know it has been successful in preventing terrorism."

Many Republicans view it as a vindication of Bush-era policies that Obama, who once questioned them as a senator, has continued as president.

"I think it's interesting that you see it's a lot of establishment politicians on both sides of the aisle who are defending these kinds of programs," said Keli Carender, National Grassroots Coordinator for the Tea Party Patriots. "It's such a shock to think that they are collecting information and communication on every single person who is innocent. There's no Fourth Amendment being observed."

House Speaker John Boehner called Snowden a traitor, and in a rare moment of agreement with President Obama vocally supported the program in an interview with ABC News Monday.

"There is heavy oversight of this program by the House Intelligence Committee on a bipartisan basis and the Senate Intelligence Committee," Boehner said. "And that's why I feel comfortable that we can operate this program and protect the privacy rights of our citizens."

He is joined by a slew of Democratic and Republican lawmakers defending the Obama administration's use of probing national security programs.

Paul, on the other hand, called Snowden's actions a "noble gesture" and a potential exercise of "civil disobedience." "I think he released information to say, look, the Bill of Rights is being ignored. And I think that in many ways is a noble gesture because he's having to give up a great deal to be on the run," Paul said on Fox News on Tuesday.

Further burnishing his anti-establishment credibility, the Kentucky senator has not joined another bi-partisan group of his colleagues in support of another, more moderate bill that would ask the administration to declassify their legal justification for probing into Americans' phone records.

But there are risks to going against the prevailing Republican Party position on the NSA's use of controversial techniques to combat terrorism.

If Paul does in fact have ambitions to run for president, he is potentially alienating a source of financial and political support.

But Paul's reputation of the standard bearer of a nexus of Libertarian and Tea Party causes has endeared him to the most passionate elements of the Republican Party's base—Tea Party activists who made 2010 a wave election for Republicans up and down the ballot.

And in the mold of his father, former Rep. Ron Paul, R-Texas, there could also be significant upsides to the strategy.

The outsider campaign his father executed for the Republican presidential nomination in 2012 raised nearly $40 million and managed to surprise GOP insiders when he came in second place in Iowa's Ames Straw Poll.

"The establishment would like to say you're taking a risk if you stand up to them. If you look at people like Rand Paul, Ted Cruz, [R-Texas], and Mike Lee, [R-Utah] they have so much support from people outside of the Washington, DC beltway. It actually makes people more passionate.

"There are people who would be willing to walk through the rain and the hail and door knock for people who are fighters," Carender said.

mschmidt64 said:

Lesser of two evils got you this.

Do not vote for one of these people again. Throw away your vote, but do not support them!!

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Your only other option was teh greater of two evils. You should be thankful.

VA Cowboy said:

Your only other option was teh greater of two evils. You should be thankful.

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Why would I be thankful for two candidates who suck?

Bluestar71 said:

These ex-Bush national security people that keep telling us not to worry because they're only looking for terrorists are full of shit. If information on everyone is collected eventually it will be accessed and ultimately abused. Maybe not by this administration or the next one, but it will happen. It goes completely against human nature to collect a vast trove of information and then do nothing with it.

If the threat of terrorism is so great that we have to completely trash our Constitution then we should be engaging in total war, nuking the middle-east, and attempting to eradicate Islam since that's where the problem originates. If it's not serious enough to do all that then the government really doesn't have any business downloading my emails.

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I like the cut of this guys jib.

mschmidt64 said:

Lesser of two evils got you this.

Do not vote for one of these people again. Throw away your vote, but do not support them!!

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This is why I voted for Gary Johnson. Both Bush and Obama are exactly the same person. They piss on the personal liberty and then hide behind a smile. Yet, there was no phoney outrage by "conservatives" when Bush did it. Fucking hypocrites.

People who think stuff like is no big deal and trust the government make sad.

EZ22 said:

People who think stuff like is no big deal and trust the government make sad.

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^5

I mean, what's the big deal right?

mschmidt64 said:

Why would I be thankful for two candidates who suck?

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You should be thankful you didn't get the worse of the two....but of course you're not you ungrateful dickhead.

VA Cowboy said:

You should be thankful you didn't get the worse of the two....but of course you're not you ungrateful dickhead.

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This would be like a policeman writing me a ticket for $100 and saying hey, I could have fined you $101 dollars, you ungrateful dickhead.

Only a POS apologist would pretend that there is a significant difference.

VA Cowboy said:

You should be thankful you didn't get the worse of the two....but of course you're not you ungrateful dickhead.

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Maybe I am confused, but how did we not get the worse of the two?

Plan9Misfit said:

This is why I voted for Gary Johnson. Both Bush and Obama are exactly the same person. They piss on the personal liberty and then hide behind a smile. Yet, there was no phoney outrage by "conservatives" when Bush did it. Fucking hypocrites.

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Yeah, voting for a guy who had about as much of a chance to win as me solves everything.