NSA Scandal Brings Opportunity for Constitutionalists


During the commencement address last month at Ohio State University, President Barack Obama talked up what he views as the virtues of big government and told graduates that they should “reject” those who warn of tyranny.

Unfortunately, you’ve grown up hearing voices that incessantly warn of government as nothing more than some separate, sinister entity that’s at the root of all our problems; some of these same voices also doing their best to gum up the works,” President Obama told the students. “They’ll warn that tyranny is always lurking just around the corner,” he continued. “You should reject these voices.  Because what they suggest is that our brave and creative and unique experiment in self-rule is somehow just a sham with which we can’t be trusted.”

Since that speech, four major scandals have emerged — the Benghazi cover-up, the Internal Revenue Service’s politically-charged targeting of Tea Party and conservative groups, the Justice Department’s war on the First Amendment, and, now, the National Security Agency’s broad seizure of millions of phone records. Each of these scandals bring a unique dynamic to the political landscape, but the NSA scandal is one that the blame is equally spread between the Obama Administration and members of both parties in Congress.

The NSA’s complete disregard for the Fourth Amendment has drawn outrage from all sides. The New York Times notoriously Leftist editorial board wasted no time in condemning the Obama Administration for its secrecy.

“[T]the Obama administration issued the same platitude it has offered every time President Obama has been caught overreaching in the use of his powers: Terrorists are a real menace and you should just trust us to deal with them because we have internal mechanisms (that we are not going to tell you about) to make sure we do not violate your rights,” the editorial board explained.

“Those reassurances have never been persuasive — whether on secret warrants to scoop up a news agency’s phone records or secret orders to kill an American suspected of terrorism — especially coming from a president who once promised transparency and accountability,” they explained. “The administration has now lost all credibility on this issue. Mr. Obama is proving the truism that the executive will use any power it is given and very likely abuse it. That is one reason we have long argued that the Patriot Act, enacted in the heat of fear after the 9/11 attacks by members of Congress who mostly had not even read it, was reckless in its assignment of unnecessary and overbroad surveillance powers.”

Rep. Jim Sensenbrenner (R-WI), who sponsored the PATRIOT Act, the law under which the NSA has seized these records, said that he is “extremely troubled” that it is being used so broadly. “I do not believe the released FISA order is consistent with the requirements of the Patriot Act,” wrote Sensenbrenner in a letter to Attorney General Eric Holder. “How could the phone records of so many innocent Americans be relevant to an authorized investigation as required by the Act?”

FreedomWorks, a grassroots organization that primarily focuses on economic liberty, issued a stinging rebuke of the NSA’s overreach. Matt Kibbe, CEO and President of the organization, noted that the “NSA’s eavesdropping on innocent civilians joins a long list of 4th Amendment violations in the U.S. that are surfacing in recent weeks.”

“We are witnessing the arrogance of the political elite, the government feels it is entitled to know the minutiae of the lives of private citizens regardless of whether they are suspected or charged with a crime,” said Kibbe. “President Obama didn’t start the assault on privacy, but he’s certainly doing nothing to stop it.”

“Whether it’s a Republican or a Democrat occupying the White House, this is what big government looks like, unless we act now to stop it,” he added.

As noted this morning, the NSA scandal presents an opportunity to roll back at least some of the excesses of the post-9/11 era. In a column at Human Events, David Harsanyi made an excellent case as to why Republicans should lead the fight to repeal or roll back some of the PATRIOT Act’s legally questionable provisions, noting that it would expose weakness in an already vulnerable administration.

Sen. Rand Paul (R-KY) is ready to dive head first into the issue.

Paul, who has been among the strongest advocates for civil liberties in Washington, announced yesterday that he will introduce the Fourth Amendment Restoration Act, which prevent this sort of overreach from occurring.

“The revelation that the NSA has secretly seized the call records of millions of Americans, without probable cause, represents an outrageous abuse of power and a violation of the Fourth Amendment to the Constitution,” said Paul in a statement through his office. “I have long argued that Congress must do more to restrict the Executive’s expansive law enforcement powers to seize private records of law-abiding Americans that are held by a third-party.”

Paul said that the Fourth Amendment Protection Act, the text of which can be read here, “restores our Constitutional rights and declares that the Fourth Amendment shall not be construed to allow any agency of the United States government to search the phone records of Americans without a warrant based on probable cause.”

There has been a lot of frustration and anger over this story. Many are beginning to channel their inner libertarian. Some have found the irony that many conservatives are now opposing a law supported by Republican president. They question whether the opposition is sincere, sometimes in a very condescending or passive aggressive manner. It’s a valid point, but it doesn’t solve how we can best work together on the issue as we move forward.

Paul and other constitutionalists in the Senate are going to be pushing this issue with everything they’ve got over the next few weeks. This may be our best chance to raise awareness on this issue with voters. Sitting out this fight because you see an inconsistency with your new found allies doesn’t help our cause.

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