By Matthew Crist
Aesop’s fable of the Tortoise and the Hare has something to teach us about the current showdown between Mitch McConnell and Rand Paul regarding the PATRIOT Act and USA FREEDOM Act.
Back in April, I wrote about Mitch McConnell’s attempt to squeak through an extension of the PATRIOT Act. Since that article, a great deal has happened. Rand Paul’s filibuster (yes, it was a filibuster) pushed back the Senate’s schedule and the TPP vote, then McConnell attempted to extend the PATRIOT Act at 1 AM, and the Senate struggled to get through its other business before going on vacation; it has been an exciting few weeks!
But now we’re coming down to the deadline. On 31 May 2015, at 4 PM, the Senate will come back into session (yes, on Sunday) to continue the consideration of the “Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring” Act (“USA FREEDOM Act”). On Sunday, we will see whether McConnell is able to salvage the PATRIOT Act, which expires 31 May 2015.
During Rand Paul’s incredibly informative filibuster, every minute of which I watched live, he did an incredibly good job at extemporaneously explaining how the NSA bulk data collection programs invade our privacy, harm international relations with the US, spy on US citizens, and other harms. Mr. Paul, however, was wrong about a few legal issues (to be blunt, I bet he was better at explaining the law than I would have been extemporaneously operating on someone’s eyeballs).
Most notably, Mr. Paul was wrong about possession of data transmitted to a phone company. The metadata that I transmit to my phone company, absent a contractual agreement to the contrary with that company, is no longer my property, I have no privacy interest in it, and the government’s collection of that data is not an infringement upon my 4th Amendment right (they are no longer my effects).
Mr. Paul referenced the Court of Appeals for the Second Circuit opinion, ACLU v. Clapper. Unfortunately, the ACLU makes the same legal mistake, namely attempting to enjoin the government from collecting “their records.” Those records are not the ACLU’s property, those records are Verizon’s property. Fortunately for the ACLU, the government didn’t make the correct standing argument (they are probably gun-shy from last time) and the Court did not correctly understand the current state of the law, and now the ACLU finally has a solid case of standing; right up until the Supreme Court corrects the Second Circuit’s errors (it will).
I dive into this case only to properly burst the false hope in it (for example, the 7 May 2015 ACLU decision does not reach the constitutionality discussion, it merely asserts the programs exceed the scope of Congress’ authorization under §215 of the PATRIOT Act and is silent about whether §215 or the NSA programs are unconstitutional).
Because we should not rely on the Second Circuit’s ACLU opinion to save us from the NSA’s awful programs, we need to look to the events of this Sunday, 31 May 2015 and hope that 10.5 hours of not peeing will not slow Rand Paul down and he will have the energy to stand up against the spying programs.
Right about now, reader, you may be asking yourself how I square the circle, how do I believe the NSA programs are wrong, and that Rand Paul, the ACLU, the Second Circuit, and most everyone in the libertarian and civil libertarian worlds are wrong, too; I believe that Mr. Paul and the Second Circuit got to the right conclusion the wrong way.
As a preliminary matter, the currently controlling Supreme Court case is Katz v. United States, 389 U.S. 347 (1967). I do not cite that case merely to appeal to the authority, Katz is correct in stating that when you give something to someone else, it is no longer your property (it really is that simple). The position that the NSA data collection programs violate the 4th Amendment cannot square its circle; that position cannot proceed beyond the fact that the metadata associated with my phone call is no more my property than the garbage that I throw into a landfill.
Where the NSA and the PATRIOT Act (and the USA FREEDOM Act, if it is passed) violate the Constitution is the lack of an enabling power enumerated in the Constitution. Congress has no power to enact such laws and the President has no such unilateral power to create such agencies or to issue its own warrants. For more information on this topic, I recommend Gary Lawson, What Lurks Beneath: NSA Surveillance and Executive Power, 88 B.U. L. Rev. (2008).
In any event, the morning of 1 June 2015 could be an incredibly joyous occasion, but we must learn from Aesop’s fable. The tortoise was slow, steady, resilient, bided his time, tricked the hare into resting on his early victories. While I believe Rand Paul will not fall for those tricks, I think the average American is. I believe most people are complacent, have come to believe that the turtle is the hero of that fable, and, I believe, in the average American, the spirit of liberty is all but dead:
“What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.”
Billings Learned Hand, Judge, Second Circuit Court of Appeals, The Spirit of Liberty (May 21, 1944).
