Take That, PATRIOT Act!

by Chris Campbell

“I wonder if anyone ever considers the easiest way to end such abuses of power,” one fellow Caleb L. writes on the crony collectivism tip. “Of course you'll get a ton of rich-hating emails about how lobbyists have to stop, should be a law against this and that, etc. But, says Caleb, the real solution is much simpler: “Remove the power. “In other words, if government wasn't allowed to be in the business of making laws and regulations about -- well, everything. “You know if they had some document they had to follow that specifically told them their powers and said that they had NO other powers than what was listed -- that instead that power is given to states and the people...“... I know, we could call it a constitution!

“... And if followed, the Gov would have no power to influence business (or anything really) -- so there would be no need to "lobby it" because it is powerless to help. Those companies could use that money to do something more productive ... like business. “I could go on and on…”

Heh. Thanks, Caleb.

This “constitution” idea you speak of is intriguing. Sounds like something I could get behind. Tell me more sometime over a beer.

Caleb, just so you know, is a long-time sufferer of LFT. And he also works with us here at Laissez Faire. In fact, just last week, he paid a visit to our office. And he’s working on some exciting stuff (more on that to come).

Last week, Caleb and I got the chance to sit down and reminisce about the good old days. Back when tax collectors were tarred and feathered and the government feared the people.

Alas, we reminded ourselves, we’re in the complete opposite position today.

The other side’s gotten too big. Our side, too complacent. But we do, despite the bloated bull, come today bearing one glimmer of good news…

We’re sure you heard: The Senate (thanks to Rand Paul) successfully blocked reauthorization of the Patriot Act.

By holding the floor for over ten hours, with the help of ten fellow senators, his filibuster prevented McConnell from filing cloture on a bill to extend or reform the PATRIOT Act.

Yes, Congress skipped town without passing a bill to reauthorize or reform. With very little time to renew the law when Congress returns from recess just hours before the deadline, it looks like three key spy provisions -- Section 215, the "Lone Wolf," and the "roving wiretap" -- could expire.

“Five days,” Paul said yesterday in an email. “That’s how long you and I have until the U.S. Senate meets in a rare Sunday session on May 31st where surveillance state apologists will do everything they can to RAM through an extension of the so-called “PATRIOT Act’s” ILLEGAL and unconstitutional spying program.”

We’ll take it, so far, as a small victory for privacy rights.

“I think we accomplished something,” Paul said following the filibuster. “It was kinda nice to have bipartisan support and having people come down. I think really there’s unanimity among a lot of us that the bulk collection ought to end.”

Take that, PATRIOT Act!

Other Senators, like Ted Cruz, feigned outrage and offered up a separate “solution”: the Freedom Act. Which is really just a new mask for the same face.

“The Freedom Act,” Rand explains, “directs phone companies, rather than the NSA, to hold certain data that the government can later search during an investigation. The act also limits the government to only asking for records based upon a “specific selection term.” Unfortunately, “specific selection term” is defined so broadly under the bill that it could include a whole corporation or a whole geographic region -- a reduced form of bulk collection, but bulk collection nonetheless, and one that ropes in the records of many innocent people.

“Additionally under the act, the standard required for initiating searches is much lower than what the Constitution calls for. The Fourth Amendment requires having “probable cause” that a crime has been committed before initiating a search, while the act lowers that bar to only “reasonable suspicion” -- an unconstitutional standard.

“While the USA Freedom Act certainly creates some very needed reforms, we’ve seen what happens when the executive branch isn’t limited by Congress’ checks and balances. We don’t like the broad language of “specific selection term” that leaves the discretion of how sweeping these dragnets can be to the people who have already shown they don’t mind violating the Fourth Amendment.”

“We should never give up our rights for a false sense of security,” Paul wrote yesterday in Breitbart, “but supporters of the PATRIOT Act are also presenting voters with a false choice.

“This week, the Investigator General reported that the FBI has not cracked a single terrorist plot thanks to the invasive spying powers implanted under the PATRIOT Act. Let me reiterate that: even the most vocal defenders of the spying program have failed to identify a single thwarted plot.

“When will we realize that trading liberty for security is a monumental mistake? The Revolutionary War was fought to protect against writs of assistance, general warrants written by soldiers not judges. Our Founding Fathers believed that the right to be left alone -- the right to be secure in your own persons -- is the most cherished of rights.”

In case you missed it, here are some highlights of Paul’s filibuster…

ONE. “I will not let the Patriot Act, the most unpatriotic of acts, go unchallenged. At the very least, we should debate. We should debate whether or not we are going to relinquish our rights, or whether or not we are going to have a full and able debate over whether or not we can live within the Constitution, or whether or not we have to go around the Constitution.”

TWO. “The president began this program by executive order. He should immediately end it by executive order. For over a year now, he has said the program is illegal, and yet he does nothing.”

THREE. “We have to decide whether our fear is going to get the better of us. Once upon a time we had a standard in our country that was ‘innocent until proven guilty.’ We’ve given up on so much. Now, people are talking about a standard that is ‘if you have nothing to hide, you have nothing to fear.’ Think about it. Is that the standard we’re willing to live under?”

FOUR. “Why don't we see any questions from the press? Why don't we see anybody from the media saying, ‘Mr. President, it's illegal, you started it, you are performing a program that is collecting all of the phone records from all Americans, it's been declared illegal from the second highest court in the land, why don't you stop?’”

FIVE. “I think we've made the [collection] haystack so big, no one's ever getting through the haystack to find the needle. What we really need to do is isolate the haystack into a group of suspicious people and spend enormous resources looking at suspicious people, people who we have probable cause.”

SIX. “Nobody ever was fired for 9/11. Instead of firing the people who didn’t do a good job, we gave them medals. The guy who did a good job, I don’t know what happened to him. And what we did was we decided we’d just collect everybody’s information. That we’d sort of scrap the Bill of Rights.”

SEVEN. “Who gets to decide who’s an enemy combatant and who’s an American citizen? Are we really so frightened and so easily frightened that we would give up a thousand-year history?”

EIGHT. “Any time you make an analogy to horrific people in history, Mussolini or Hitler, people say, ‘Oh, you’re exaggerating, you’re talking about, it’s hyperbole.’ Maybe it is. … But I would say is that if you are not concerned that democracy could produce bad people, I don’t think you’re really thinking this through too much.”

NINE. “You don't know who the next group is that's unpopular. The Bill of Rights isn't for the prom queen. The Bill of Rights isn't for the high school quarterback. The Bill of Rights is for the least among us. The bill of rights is for minorities. The bill of rights is for those who have minority opinions.”

TEN. “In the aftermath of 9/11, the Patriot Act was rushed to the floor. Several hundred pages. Nobody read it… But people voted because they were fearful and people said there could be another attack and ‘Americans will blame me if I don't vote on this.’”

ELEVEN. “Any time someone tries to tell you that metadata is ‘meaningless, don't worry, it's just who you call, it's just phone records, it's not a big deal’ -- realize we kill people based on metadata. So they must be pretty darn certain that they think they know something based on metadata.”

TWELVE. "Let’s say tomorrow that there was a president, that we elected a president that eliminated the bulk collection of data. Let’s just say it happened. What do you think would happen? People are like ‘the sky would fall. We would be overrun with jihadists.’ Maybe we could rely on the Constitution. Maybe we could get warrants... If you make the warrant specific, there’s no limit to what you can get through a warrant.”

As Judge Andrew Napolitano put it: “The Patriot Act is the centerpiece of the federal government’s false claims that by surrendering our personal liberties, it can somehow keep us safe.

“The Framers addressed it in the Constitution itself, where they recognized the primacy of the right to privacy and insured against its violation by intentionally forcing the government to jump through some difficult hoops before it can capture our thoughts, words or private behavior.”  The hoops, of course, are warrants issued based on evidence -- or probable cause.

“None of this is new,” Judge Napolitano says, “it has been at the core of our system of government since the 1790s. It is embodied in the Fourth Amendment, which is at the heart of the Bill of Rights. It is quintessentially American.

“The Patriot Act has purported to do away with the search warrant requirement by employing language so intentionally vague that the government can interpret it as it wishes. Add to this the secret venue for this interpretation -- the Foreign Intelligence Surveillance Act (FISA) court to which the Patriot Act directs that NSA applications for authority to spy on Americans are to be made -- and you have the totalitarian stew we have been force-fed since October 2001.”

And what does the judge think of the Freedom Act? “The so-called Freedom Act,” Napolitano goes on, “would actually legitimize all spying all the time on all of us in ways that the Patriot Act fails to do. It is no protection of privacy; it is no protection of constitutional liberty. It unleashes American spies on innocent Americans in utter disregard of the Fourth Amendment.

“How do we know that the Freedom Act is a Band-Aid only?” Napolitano asks.

“Because the NSA supports it.”

© 2015 Laissez Faire Books, LLC.