Today is an important day for the U.S. Constitution.
The U.S. Senate is expected to start debating around 4 p.m. Eastern this afternoon on whether to pass the USA Freedom Act. It’s not a bad bill, but has major problems.
It still allows for the collection of bulk metadata, just by the phone companies instead of the government. It doesn’t sound bad, but the Justice Department can easily subpoena a corporation for the information under the legal definition of corporate personage. It’s considered the Citizens United definition, but the U.S. Supreme Court has been arguing on whether corporations are people since 1818 and the Trustees of Dartmouth College v. Woodward case.
The bill also extends the Patriot Act another four years. It’s an attempt by the House and Senate to avoid another full re-authorization in June. It slightly makes sense because Congress and the President extended the Patriot Act for four years in 2005 and 2011. There was also a one year extension in 2010. But Josh Withrow over at FreedomWorks points out the four-year extensions are a a problem:
The entire point of a sunset is so that new Congresses are forced to periodically review the effects of a controversial policy, and to make modifications as needed. Given the justly heightened controversy surrounding the surveillance of Americans, a shorter sunset is necessary.
Withrow’s piece looks at other problems with the USA Freedom Act. It’s worth a read.
Kentucky Republican Senator Rand Paul isn’t in favor of the USA Freedom Act and is promising to run out the clock. It’s a big hill to die on, and kudos to Paul for being willing to do it.
It almost seems like he’s opposed by everyone except Oregon Democrat Senator Ron Wyden, but that may not be the case. Utah Republican Mike Lee supports the USA Freedom Act, but joined Paul’s filibuster earlier this month because he’s in favor of amendments to the bill. It’s the exact same reason why Paul filibustered in the first place. He was angry at Senate Majority Leader Mitch McConnell for not wanting any amendments.
Will Paul end up speaking for hours on end again? Maybe, maybe not. It’s possible Paul and Wyden will take the floor and speak for hours on the issue. But Roll Call points out Paul will have multiple opportunities to delay everything:
But without Paul’s consent the programs in question would go dark because McConnell would still have to file a cloture motion to end Paul’s filibuster of the bill itself. And that vote, under the rules, wouldn’t occur until 1 a.m. Tuesday at the earliest.
Under the rules, cloture motions must sit through an intervening day, which would be Monday if McConnell were able to move to cut off debate on a bill on Sunday.
Following that 1 a.m. Tuesday cloture vote, again assuming all possible speed, Paul would be entitled to chew up another hour talking on the floor.
It’s political theater at its finest with the Constitution at stake.
So why is this important? From the Fourth Amendment of the Bill of Rights:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
It’s more than just the Bill of Rights, it’s everyone right to privacy. It’s no one’s business to know who you talk to. The government can solicit a warrant for phone records if they have probable cause to suspect you of criminal activity. But the government has to show warrants to people and hold public hearings.
FISA courts aren’t doing this. They’re all conducted in secret, all in the name of national security. The federal government is allowing itself to run a court without proper representation of those being investigated. Without any publicity of it, especially to the person they may be investigating.
Per the Foreign Intelligence Act of 1978 (emphasis mine):
Whenever a court or other authority is notified pursuant to subsection
(c) or (d), or whenever a motion is made pursuant to subsection (e), or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this Act, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the surveillance as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the surveillance only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.
All done in the idea of “national security.” This is unconstitutional and needs to stop.
This is why Rand Paul’s actions are so important. If he can stop the Patriot Act, it’s the first time in a long time someone can say, to quote William F. Buckley, they stood athwart history, yelling “Stop!” and actually succeeded.
Taylor Millard is the co-founder of Vigilant Liberty Radio. He hosts Saturday Night Cigar Lounge at 9pE on Saturdays and co-hosts Right War w/Liz Harrison on Wednesday and Thursday at 11pE on FTR Radio.