Rand Paul’s losing argument


The Washington Post

The bane of Big Government, Sen. Rand Paul, R-Ky., is inviting Americans to join him in a class-action lawsuit to stop what he says are unconstitutional invasions of privacy by the National Security Agency. “I’m going to be seeing if I can challenge this at the Supreme Court level,” he declared Sunday on Fox News.

Who would win Paul and 10 Million Citizens v. NSA? Paul’s first problem would be a lack of standing to sue in federal court. It’s not enough to claim that the government is threatening your rights; applicable precedent says you have to show a “concrete and particularized” violation of those rights or, at least, an imminent one.

A few months ago the Supreme Court threw out a lawsuit by lawyers, journalists and human-rights activists seeking to strike down the 2008 amendments to the Foreign Intelligence Surveillance Act, under which the NSA conducts data-collection programs — including, we now know, PRISM. These plaintiffs called the NSA’s activities a “dragnet,” much as Paul likens them to one of King George III’s general warrants.

In a 5-to-4 decision, the justices dismissed the complaint as “a speculative chain of possibilities.” The plaintiffs in that case, Clapper v. Amnesty International, were protesting surveillance of potential conversations with people overseas, whereas Paul says his focus is all-American communications. That might make a difference — but at a minimum, this brand-new precedent cuts against Paul.

Nor do things look promising on substance. The government needs a court-issued warrant, based on probable cause, to listen in on phone calls. Consistent with that, the 2008 FISA amendments say that the government has to get a warrant if it wants to query one of its digital databases and examine the content of an American communication.

But since the 1979 ruling in Smith v. Maryland it has been well settled that the government does not need a warrant to look at phone records — information about, say, the duration and direction of calls that companies routinely gather from their customers, who therefore have no reasonable expectation of privacy.

To the extent that the NSA is gathering only “metadata” about people’s phone calls and their activities on social media, Smith v. Maryland is on the government’s side.

True, the FISA court works in secret — not ideal for a purist civil libertarian. But remember that the court was established as a remedy for the unchecked executive-branch snooping of the 1960s and 1970s, and that it was further empowered under the 2008 amendments to remedy perceived excesses of the George W. Bush administration.

Metadata and private content travel together on the Internet, so it’s technically easy to look at the latter after accumulating the former. But the 2008 statute requires the government to take steps — known as “minimization” — to limit warrantless access to private data.

Maybe those procedures are routinely violated. Yet for all his claimed knowledge of wrongdoing, leaker Edward Snowden has yet to specify a single such instance.

Paul’s best argument would be that the Obama administration stretched the meaning of the 2008 FISA amendments when it sought, and obtained, a FISA court order requiring Verizon to turn over phone records so that the government could use them to create a searchable (with a warrant) database.

As Benjamin Wittes and Robert Chesney argue in the New Republic, this might be more than Congress intended when it authorized the government to seek “tangible things” that are certifiably “relevant” to a national security investigation.

Still, it would be of significance at the Supreme Court that the administration persuaded a federal judge to accept its reading of the statute and that at least some members of Congress acquiesced as well.

In short, Paul would be asking the justices not only to revise decades of constitutional doctrine but also to second-guess FISA court orders and the will of Congress. That would be a tall order since, as Justice Robert H. Jackson wrote in the Steel Seizure Case of 1952, the executive branch’s authority is “at its maximum” when it acts according to duly enacted statute.

Paul should reread Jackson’s opinion, written just after the United States had defeated Nazism and was preparing to confront another global threat, Soviet communism.

What he’ll find are the reflections of a deeply experienced lover of liberty who understood that the Constitution was not, as he put it elsewhere, “a suicide pact.”

It ordains both individual freedom and collective safety — and hence a democratic process, subject to judicial review, through which Americans and their representatives decide how much liberty, if any, to trade for protection against terrorism and other threats.

Jackson’s morally serious words remind us that it’s much harder to make such choices, and be held accountable for them, than it is to sit in the back benches of the Senate and criticize.

Charles Lane is a member of The Washington Post’s editorial board.

The Washington Post

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