FISA

Dishonor Roll: Rand Paul

By Benjamin Wittes
Wednesday, June 3, 2015, 7:18 AM

Well, the USA Freedom Act is now law, which should have happened six months ago, and then should have happened a few weeks ago, and then should have happened a few days ago---but didn't.

Almost nobody has shrouded himself in glory on this one. And a few people really stand out for having demeaned their public personas in this whole process. This week, however, Rand Paul really stands out in a singular fashion for unrivaled constitutional grandstanding in support of a bad cause. A Washington Post editorial yesterday nails it:

For Mr. Paul, opposition to NSA “spying” is a matter of libertarian principle bordering on passion. Indeed, the matter excites him so much that he has aimed extreme, sloppy rhetoric at those who don’t share his views, suggesting, for example, that “some people are so fearful” of terrorism that they believe “ISIS will be in every drug store in America, in every house, if we don’t get rid of the Constitution.”

Mr. Paul is the one misstating constitutional law. “[T]he phone records of law-abiding Americans are none of the government’s business!” his campaign Web site declares. Actually, the Supreme Court held 36 years ago that there is no constitutional right to privacy in phone records (as opposed to phone conversations). The court reasoned, realistically, that customers willingly convey numbers and times to the phone company each time they dial, knowing that the company retains the information for business purposes. Technology was more primitive in 1979; the justices may well decide that Fourth Amendment doctrine needs updating. Meanwhile, it is not tyrannical for government to rely on existing precedent.

Mr. Paul calls the NSA program “illegal,” which is somewhat more plausible, since the Bush and Obama administrations stretched the terms of the USA Patriot Act to win approval for it from the secret Foreign Intelligence Surveillance Court. If so, the cure is a new law, such as the one Mr. Paul just gratuitously blocked. The USA Freedom Act leaves metadata collection to the private sector, subject to searches approved by the intelligence court, but Mr. Paul thinks anything short of a warrant from an ordinary federal court would be unconstitutional. Again, he’s entitled to his opinion; again, it’s contrary to current Fourth Amendment law, as the legislation’s authors, senior Republicans and Democrats on the House and Senate Judiciary committees, well understand.

Denouncing fear and paranoia about terrorism, Mr. Paul sows fear and paranoia about government.