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An Error-Riddled Tirade

There may be more uninformed or misleading detractors of Senator Rand Paul (R-Ky) and the impending expiration of section 215 of the Patriot Act than Andrew C. McCarthy, but if there are, they do not readily come to mind.
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There may be more uninformed or misleading detractors of Senator Rand Paul (R-Ky) and the impending expiration of section 215 of the Patriot Act than Andrew C. McCarthy, but if there are, they do not readily come to mind.

In his latest scribbling -- "Why National Security Republicans Lost the Patriot Act Debate" -- Mr. McCarthy's errors overflow like the Nile.

The National Security Agency does know your name -- notwithstanding Mr. McCarthy. It can be obtained through National Security Letters issued by the FBI to phone companies asking for subscriber information linked to phone numbers seized by the NSA, through virtually limitless NSA spying to gather foreign intelligence authorized by Executive Order 12333, or through the interception of the contents of international communications authorized by section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008.

Mr. McCarthy is apoplectic that the United States Court of Appeals for the Second Circuit likened the post-9/11 climate to the early 1970s when the intelligence-gathering and surveillance activities of the NSA, FBI, and CIA came under public scrutiny. Among other things, the post-9/11 climate has featured the warrantless Terrorist Surveillance Program (TSP) in criminal violation of the Foreign Intelligence Surveillance Act, Abu Ghraib; waterboarding; the CIA's destruction of interrogation videotapes and hacking into Senate Intelligence Committee computers in violation of the Speech or Debate Clause; torture; Espionage Act prosecutions brought against whistleblowers like the NSA's Thomas Drake; and, the Director of National Intelligence, James Clapper, untruthfully testifying to the Senate Intelligence Committee that the NSA was not collecting data on millions of Americans--tantamount to perjury.

Mr. McCarthy omits that the NSA's secret, criminal TSP would have persisted forever with no statutory authorization or judicial oversight (making section 215 of the Patriot Act superfluous) but for a leak to The New York Times belatedly published in December 2005. He also omits that but for Edward Snowden's disclosures, there never would have been congressional or public debate about the NSA's interpretation and application of section 215; and, the Second Circuit would never have adjudicated the legality of the bulk seizure of telephony metadata for lack of standing, i.e., proof that the Plaintiffs were actually targets of the alleged unlawful surveillance. The NSA testified before Congress that it planned to keep its section 215 program secret in perpetuity.

Mr. McCarthy's discussion of the Fourth Amendment and Supreme Court's jurisprudence is also flawed. He scornfully dismisses constitutional attacks on the NSA's indiscriminate seizure of telephony metadata on the entire population in perpetuity as discredited by Smith v. Maryland, an ill-considered 5-3 decision in 1979 authored by Justice Harry Blackmun (who also authored Roe v. Wade in reliance on penumbras and emanations). In Smith, police installed a pen register on the phone of a robbery suspect for a short period because the victim had reported harassing phone calls from the self-identified robber. In these circumstances, the Court held a warrant based on probable cause was not required for the pen register because the criminal suspect had no reasonable expectation of privacy in the numbers he dialed.

The NSA's metadata program is quite different. It is intended to last in perpetuity. It targets the entire population, not a single criminal suspect. None of the targets are suspected of a connection with international terrorism or crime. The government can infer vastly more about a citizen's life by knowing every phone number dialed, the duration of the call, and the time of the call for all eternity than it can from a pen register employed for a few weeks. The staggering distinction between the two underwrote the decision of United States District Judge Richard Leon holding the NSA's metadata program unconstitutional under the Fourth Amendment.

Moreover, the Supreme Court in United States v. Jones (2012) cast doubt on the rationale of Smith. Decided well before the Digitial Age, Smith has become a museum piece destined for overruling like more than 200 other Supreme Court errors. As Justice Louis D. Brandeis lectured in Burnet v. Colorado Oil & Gas, "The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function." Thus, the Court overruled Olmstead v. United States in the Katz decision 39 years later in holding that conversations were protected by the Fourth Amendment.

Mr. McCarthy again stumbles in asserting that the NSA's metadata program requires a judicial warrant. It does not. It is authorized by a FISC order based neither on probable cause nor particularized suspicion as required for warrants under the Fourth Amendment.

Mr. McCarthy's Ursa Major error is in failing to grasp the philosophical principles of the Declaration of Independence and the Constitution. We are born with unalienable rights, including the right to be let alone from government snooping absent a strong showing of an urgent need rooted in evidence, not speculation. Liberty is the rule and government encroachments the exception. We knowingly take risks that unfree countries like Russia and China do not. We exalt a right to privacy from government overreach for its own sake. It needs no further justification.
Mr. McCarthy nowhere comes close to demonstrating a compelling or strong NSA need for the metadata program to defeat crime or cripple international terrorism. It has been intact for more than nine years. According to the President's Privacy and Civil Liberties Board, it is proven virtually worthless. According to the Justice Department's Inspector General, it has not contributed to cracking a single major case. It is surveillance for the sake of surveillance reminiscent of George Orwell's 1984.

Mr. McCarthy speculates that the metadata program might be useful in mapping terror cells and uncovering their support networks. He proffers nothing to corroborate his speculation or any tangible benefit that has been achieved in confronting international terrorism. In any event, privacy may not be crucified on a hypothetical national security cross under the Fourth Amendment.

I would wager that neither Mr. McCarthy or any readers of National Review have lost a wink of sleep worrying that the expiration of section 215 on June 1 might place them in danger. For good reason. It won't. The NSA has brigades of other authorities to gather intelligence for national security purposes, including EO 12333 and pre-Patriot Act powers to spy on foreign entities (which command no Fourth Amendment rights) or their agents.

Depend upon it. The metadata program will lapse. There will be no adverse impact on preventing, detecting, or prosecuting international terrorists. And the program's defenders will be exposed as modern day Chicken Little's forever cackling that the sky is falling down.

*Bruce Fein, foremer associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan, and author of Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy and American Empire Before The Fall.