In March 2013, Director of National Intelligence James Clapper sat before the Senate Intelligence Committee when Sen. Ron Wyden asked him if the NSA collected “any type of data at all on millions or hundreds of millions of Americans?” Clapper’s unequivocal response: “No, sir.” It was a lie; but it was not until months later that Clapper finally offered a tepid apology for what he claimed was a “mistake.” His excuse -- delivered with all the sincerity he could muster and still keep a straight face -- was that he “simply didn’t think about Section 215 of the Patriot Act” when he delivered his earlier, unqualified denial.
Clapper moved on to other endeavors, as did the Senate; and his bald-faced lie largely faded away. Thankfully, just last week, a federal Appeals Court panel in New York showed it was not so willing to “let bygones be bygones.” In an opinion that was unusually blistering in its tone and wording, the Court stated that the manner in which the National Security Agency (NSA) has been using Section 215 to scoop up so-called “metadata” on virtually all cell phone and other electronic communications, is simply illegal.
The Second Circuit opinion comports clearly with both the language and the intent of this section of the Patriot Act. I should know; I was a member of the House Judiciary Committee that debated the legislation in committee and on the floor of the House back in the immediate aftermath of the 911 attacks. More broadly, of course, the Court recognized that the government’s absurdly expansive reading of the section would, if allowed to continue, make a mockery of any reasonable expectation of privacy enshrined in and protected by the Fourth Amendment.
Sadly, but true to form, many Republican Senators, including Majority Leader Mitch McConnell and presidential hopeful Marco Rubio, remain steadfast in support of the surveillance program now clearly found to be unlawful. They vow to bring legislation to the floor that would continue the program without any limitation. This doubling-down strategy is accompanied by the usual cries that “the sky is falling,” and that “Lone Wolf” terrorists will run rampant in the streets of American cities, if NSA is reined in to the slightest degree in its zeal to gather metadata.
The manner in which some of these surveillance supporters convey their support has been misleading, to say the least. Sen. Rubio, for example, recently encouraged his Twitter followers to let him know if they agree that “now’s not the time to end NSA.” No one, of course, is moving to close down NSA; critics are simply asking that the Congress limit the Agency’s surveillance powers over law-abiding Americans to lawful means. But, in senatorial or presidential politics, accuracy often is the victim of hyperbole.
Last week’s ruling is a refreshing reminder that there still are judges in America who understand the Constitution, who can read and abide by the common sense meaning of legislation, and who are sufficiently courageous to stand up and say so. It is true that there are individuals in the Congress who hold similar views; but unfortunately at least on the Republican side, they appear to be in the minority.
One Republican who clearly “gets it,” is Sen. Rand Paul, who is threatening to filibuster the effort by his Party’s leadership to kick the NSA can down the road and thereby permit it to continue at least for the time being to operate outside the law. All Americans – inside the Congress or elsewhere – who believe in constitutionally-based governance, should energetically support Rand Paul’s effort.