Paul Albaugh / May 12, 2015

The Trouble With the NSA’s Haystack

The looming debate over mass metadata collection will be interesting.

Terrorism has again become one of the foremost concerns for Americans today. People are generally worried about the increased jihadi threat and look to government to ensure safety and security. While the Constitution certainly empowers the federal government to provide for the common defense of our nation, including counterterrorism measures, what it should not do is infringe on the rights of American citizens — specifically, the Fourth Amendment.

Last week, the Second Circuit Court of Appeals ruled the National Security Agency’s massive telephone metadata collection efforts are not authorized by the Patriot Act. However, the court did not rule the NSA’s actions are unconstitutional and it did not issue an order for the NSA to stop its data collection because the Patriot Act’s Section 215, which the NSA cites as its authority, is set to expire June 1. In other words, Congress must act soon anyway, and a vote is expected by May 22.

That the NSA is collecting phone records on all Americans may not seem terribly important — especially the more the public becomes accustomed to the idea — but it’s a critical issue. Like so many other things during this administration’s tenure, it pertains to the very real potential, if not actual, abuse of power.

Recall that the Patriot Act was passed following the September 11 terrorist attacks. The law was sold as a necessary counterterrorism measure to provide for better security. By and large, the law is a good one, aimed in the right places. But as with so many other laws, sometimes the consequences are less freedom and more government overreach.

There has already been squabbling in Congress over the NSA’s data collection, and the Patriot Act debate is sure to resemble a hornet’s nest. It will also pit Republicans against each other.

Already, Senate Majority Leader Mitch McConnell (R-KY), who had hoped to avoid defending the NSA, announced his unwavering support for the Patriot Act. He touted Section 215 in particular as “an important tool to prevent the next terrorist attack.” He also said, “Section 215 helps us find a needle in the haystack. But under the USA Freedom Act [which ends bulk metadata collection], there might not be a haystack at all.” He is hoping for a short-term extension that will allow the Senate to negotiate reforms.

Joining McConnell will be several other Republicans, led by the “nobody out-hawks us” John McCain (R-AZ) and Lindsey Graham (R-SC). Graham is expected to announce his candidacy for president on June 1, and may very well use his support of the Patriot Act as a launch pad for his national-security-based campaign.

Meanwhile, Sen. Rand Paul (R-KY), another 2016 presidential candidate, staunchly opposes the NSA surveillance program. In fact, after the Second Circuit’s ruling, he declared, “Congress should immediately repeal the Patriot Act provisions and pass my Fourth Amendment Preservation and Protection Act.” He intends to mount a filibuster against reauthorizing the Patriot Act.

Paul won’t be alone, as other conservatives are likely to join the fight and at least one Democrat, Senator Ron Wyden from Oregon, has voiced opposition to the NSA surveillance program as well.

In 2013, Rep. James Sensenbrenner (R-WI), chief author of the Patriot Act, explained the difference between the law itself and the NSA’s interpretation: “This is the difference between using a rifle shot to get the phone records of somebody that we have great suspicion is involved in terrorist activity [and] using a blunderbuss to grab the whole haystack and to try to find the needle in it.” His metaphor wasn’t the best, but he clearly never intended the NSA’s broad reading of Section 215.

After all, as Reason’s Jacob Sullum notes, “Usually when someone says a proposal is like looking for a needle in a haystack, he is not recommending it; he is suggesting the idea is misguided and bound to fail.”

While we don’t like to see GOP infighting, at least they will be wrestling over an issue that pertains to the Constitution.

With all of the Obama administration’s scandals and abuse of power, why should Congress trust that the NSA surveillance program won’t be abused for political means? There is certainly a place for tough counterterrorism measures, but such sweeping collection of phone records when there is no relevance or reasonable grounds to believe a call is linked to terrorism is unwarranted, unconstitutional and unwanted by those of us who cherish Liberty. The Patriot Act has its place, but the balance between Liberty and security is paramount.

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