Patriot Act

Rand Paul Versus Ted Cruz on the Fourth Amendment

Paul's is the only voice among those running for president who is faithful to the Constitution.

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Rand Paul/Facebook

A decision last week about NSA spying by a panel of judges on the United States Court of Appeals in New York City sent shock waves through the government. The court ruled that a section of the Patriot Act that is due to expire at the end of this month and on which the government has relied as a basis for its bulk acquisition of telephone data in the past 14 years does not authorize that acquisition. This may sound like legal mumbo jumbo, but it goes to the heart of the relationship between the people and their government in a free society. Here is the backstory and the latest. 

The Patriot Act is the centerpiece of the federal government's false claims that by surrendering our personal liberties to it, it can somehow keep us safe. The liberty-for-safety offer has been around for millennia and was poignant at the time of the founding of the American republic. The Framers addressed it in the Constitution itself, where they recognized the primacy of the right to privacy and insured against its violation by the government by intentionally forcing it to jump through some difficult hoops before it can capture our thoughts, words, or private behavior.

Those hoops are the requirement of a search warrant issued by a judge and based on evidence—called probable cause—demonstrating that it is more likely than not that the government will find what it is looking for from the person or place it is targeting. Only then may a judge issue a warrant, which must specifically describe the place to be searched or specifically identify the person or thing to be seized.

None of this is new. It has been at the core of our system of government since the 1790s. It is embodied in the Fourth Amendment, which is at the heart of the Bill of Rights. It is quintessentially American.

The Patriot Act has purported to do away with the search warrant requirement by employing language so intentionally vague that the government can interpret it as it wishes. Add to this the secret venue for this interpretation—the FISA court to which the Patriot Act directs that NSA applications for authority to spy on Americans are to be made—and you have the totalitarian stew we have been force-fed since October 2001.

Because the FISA court meets in secret, Americans did not know that the feds were spying on all of us all the time and relying on their own unnatural reading of words in the Patriot Act to justify it until Edward Snowden spilled the beans on his former employer nearly two years ago.

The feds argued to the secret court that they were entitled to any phone call data they wanted—usually sought by area code or zip code or the customer base of telecom service providers—so long as they claimed to need it to search for communications about terror-related activities, and they claimed they needed everyone's records, and they claimed the Patriot Act authorized this.

The secret court bought those claims, and—fast-forward to today—the feds now have immediate access to our phone calls in real time. They can turn on our cellphones in our pockets and purses and use them as listening devices without us knowing it, and they have physical access to all telephone carriers' equipment whenever they wish, which today is 24/7.

Some members of Congress reject this. Foremost among the outraged in the Senate is Kentucky Sen. Rand Paul. It is none of the government's business, he argues, what we say on our phone calls. If the NSA wants to hear us, let them present probable cause to a judge identifying the person they want to hear and seek a search warrant. Paul's is a genuine outrage from the only voice among those running for president who is faithful to the Constitution.

Other senators—foremost among them Texas Sen. Ted Cruz, also running for president—are pretending outrage by offering a Band-Aid to replace the Patriot Act called the Freedom Act. The Freedom Act gets the NSA physically out of the telecoms' offices, but lets them come back in digitally whenever one of these secret FISA courts says so, and the standard for saying so is not probable cause as the Constitution requires. It is whatever the government wants and whenever it wants it.

The so-called Freedom Act would actually legitimize all spying all the time on all of us in ways that the Patriot Act fails to do. It is no protection of privacy; it is no protection of constitutional liberty. It unleashes American spies on innocent Americans in utter disregard of the Fourth Amendment.

Earlier this week, Paul announced that he feels so strongly about the right to be left alone, and takes so seriously his oath to uphold the Constitution, and believes so certainly that our phone calls are none of the government's business that he plans to filibuster all attempts to permit this to continue. For that alone, he is a hero to the Constitution. Perhaps his friend Cruz will return to his constitutional roots and join him.

How do we know that the Freedom Act is a Band-Aid only? Because the NSA supports it.

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70 responses to “Rand Paul Versus Ted Cruz on the Fourth Amendment

  1. If a thread falls in the.deep of.night and there is no Agile Cyborg to post in it, does it really have any.comments?

    1. WTF is your deal with periods dude?

      1. Now you’ve done it, we’re going to get ads for that app that lets women track their periods in their menstrual cycle. Not again!!

        1. Doesn’t matter. I got my red wings.

          1. And my black wings, but not at the same time. : (

            1. Now, do “yellow wings” exist? If not, I propose another “merit badge”, of course, only in opposition to racism.

              1. Yes, though there is controversy on whether it should refer to watersports or just any activity with the sons and daughters of old Cathay.

      2. You’re supposed to read his comments with the cadence of Bill Shatner.

        1. Double-You Tee… Eff… is your… deal with…. periods… dude?

          /Shatner

          1. Denny!

  2. In the absence of actual consequences, any legislative fix is merely a band-aid. They weren’t following the law in the past. They aren’t following the law now. What makes anyone think they’ll follow a new law?

    1. You misspelled “tampon”, or maybe Kotex.

  3. Even back in the 20th C. there were many who thought the NSA was doing essentially this. Many even joked about it.

    Whenever something like this actually goes on, obviously the people who want to do it are highly motivated to do so. It may be that stopping them is like trying to stop narcotics activity, in that they’ll do it regardless of what the law is. Prohibition doesn’t work, even (or especially) when it’s a prohib’n on gov’t. I they think it’s important enough, they’ll sacrifice all other values to the action.

    You know how in the spy novels, the spies are essentially lawless & their watcher’s watcher’s watchers will deny all knowledge? Kill people & make it look like an accident so nobody but other spies suspect anything’s going on? The only way to fight them is on a level as covert as they are. So there may be no point in trying to stop them until they try to act on it in a way that you become aware of. It’s like, if there were another consciousness in your head knowing all your thoughts but having no control over your muscles, would it make any difference to you?

    1. I’ll put it another way: Would you not try to stop them by illegal means? Then why do you deny them the same? They would probably lay off every single other gov’t employee before the ones doing this, & pay them covertly. If they couldn’t fund it by taxes, they’d fund it by stealing from bank acc’ts. They clearly think it’s the most important thing in the world, or they wouldn’t do it, because they’re just like us: they’re following a great cause.

      If it were just a matter of some bureaucrats doing it because it’s a job like any other, & it’s on autopilot, going on for reasons everyone forgot about millennia ago, this problem would be trivial.

    2. Not only does prohib’n no work, but attempts at prohib’n cause the nastiest people to wind up in the job. Why would it be any less so for spying than for narcotics?

      We may be better off legalizing it all, & allowing anyone to spy on anyone else legally, in which case it’d become harmless because we’d all be doing it innocently, everybody would be equally to blame & equally innocent, & there’d be nothing left to be ashamed of because none of us would care what anyone knew about anything. It’s the same idea (or at least one of the ideas) as nudism.

    3. Even back in the 20th C. there were many who thought the NSA was doing essentially this. Many even joked about it.

      But they were ridiculed as paranoid conspiracy theorists. I remember reading about lots of theories and speculation on Usenet newgroups back when we had dial-up and text-based BBSs. The crypto-anarchists and the paranoid researchers were right though. After revelations about the kind of equipment and methods they use, Applebaum’s break-in and bugging and other incidents, I’m still keeping my tin-foil hat on.

      You know how in the spy novels, the spies are essentially lawless & their watcher’s watcher’s watchers will deny all knowledge? Kill people & make it look like an accident so nobody but other spies suspect anything’s going on?

      Plausible deniability is critical in maintaining the system. I’m not sure if anyone in power who’s a public figure would really want to know the details either. It’s like the CIA snatching people or asking some foreign government to intercept someone enroute then sending them off to Turkey to be “interrogated”. We got your intelligence. How? Oh, our contacts in XYZ government shared it with us.

      1. +1 M-x spook

    4. Yeah. I’ve lived in Taiwan for a while. Every time that I call my mother or father (on Monday morning, because they’re in their eighties, and sure to be home on Sunday night) I always mention the code words, like “car bomb”, “jihad”, police brutality”, terrorism, Rand Paul, etc… just in the interest of job security. Otherwise, I often use the code words “tequila”, or “mezcal”. Or pot, Mexican, and “buttsex/ butt sex”.

    5. Even back in the 20th C. there were many who thought the NSA was doing essentially this. Many even joked about it.

      Back in ’97 while I was in college I overheard a conversation where one of the guys was talking about his father working on hardware for a phone company. He said that all the equipment was required to give the government physical access to all the calls. So it looks like they were doing this all along, and all the PATRIOT Act did was formalize it.

  4. Those hoops are the requirement of a search warrant issued by a judge and based on evidence…

    Has a judge ever followed up on whether a routine warrant application they signed was truthful?

    1. When the Magna Carta was signed?

  5. Does Napolitano answer his own question? Tune in at midnight to find out.

  6. They hate us because of our Freedom Acts!!!

    1. Nice.

      I also heard that they hate us for some of our commentators’ unnatural acts.

      (I don’t want to name names.)

      1. Warty?

    1. Not to worry, H M — “Our interactions with Chinese ships continue to be professional.”

      1. It’s not a professional naval interaction until you have rum, sodomy, and the lash.

      2. “unspeakable things”

        The Unspeakable Acts.

        1. Oops – That was in response to Vampire’s 8:25 post, below.

          This one should have been in response to “Our interactions with Chinese ships continue to be professional.”

          So, no Battle Acts then?

          (I understand I just now didn’t make anything better. I blame it on a lack of adequate sleep and low impulse control)

    2. It’s not a pissing match. They’re just having a friendly game of Battleship… with real guns and real flesh + blood. It’s good to see the boys playing instead of hanging around with hoodlums and doing drugs, ya know?

  7. How about a compromise? Let the government read our snail-mail in exchange for not monitoring the intertoobs. Think of the JOBS! And … it may also have the effect of saving the USPS some money.

      1. No law of Congress can place in the hands of officials connected with the Postal Service any authority to invade the secrecy of letters and such sealed packages in the mail

        So, yep.

    1. Being you’re so willing to compromise everyone else’s rights, maybe we should let them take you and do unspeakable things to you. Then they can stay out of our stuff altogether.

      1. Note to self: Use less-subtle sarcasm.

    2. Compromise with the state means compromising other’s rights most probably. Not a valid compromise in my view but merely an excuse to continue violating civil rights.

  8. Good Morning Peanuts!

    Been busy lately. I told you fuckers two weeks ago you should be enjoying this rift between Obama and the “true progressives” and I see you all finally started paying attention to it.

    Of course you don’t know what to make of it since you hate both sides including the free trade side Obama has staked out.

    1. Wow, you are completely right!

      Thank you very much for your insightful comments!

      We all — every single last one of us — completely agree with you.

      1. d3x / dt3 is right about PB being right.

        His work is done here.

        1. I for one am glad these children were present to hear that speech. Not only was it authentic P.B. derp, it expressed a courage rarely seen in this day.

    2. Hate? Comes from someone who espouses other folks in fancy clothes and costumes use violence against others to confiscate their stuff while hiding behind them and then considering ?him/herself? compassionate?

      Why don’t you put your beliefs into action and go rob your neighbor?

      Then go on and regulate trade between your neighbors too. Tell them they cannot freely trade sugar and eggs with the other neighbor because you want your cut. Although I doubt you’d make it past the robbery part.

      1. They’re not your sugar and eggs. They’re the community’s sugar and eggs. We all have a duty to contribute to the community.

        My contribution? I contemplate and teach others about the vital concept of community.

        1. You…..you…./holds face with both hands/ must be a community organizer!!!!

    3. Re: Peter Caca,

      Of course you don’t know what to make of it since you hate both sides including the free trade side Obama has staked out.

      How sweet. The idiot thinks that when Obama talks about “free trade”, he really means it. Oh, you look so adorable with your cute rosy cheeks, you snookums!

      1. But…but…free trade happens when governments get together and dictate how/when/where/what/who is free to trade. These rules make us freeeeee!

  9. OT: From CNN’s series on “Millennials & Their Money”

    Why I rent everything: From clothes to jewelry

    I subscribe to Hello Fresh, which delivers the ingredients, pre-measured with recipes (pictured above) to my door. Then all I have to do is cook them.

    I only get a box every once in a while. It costs $69 for three meals, each of them for two people. So that’s $11.50 per meal.

    Full disclosure, I usually make the food go further than two meals.

    This service is a bit pricey, but to me it’s worth it.

    We are so, so fucked…

    1. The first time a steak came in my box, I was terrified because I had never cooked a steak.

      So fucked, indeed.

      1. “…steak came in my box…”

        Huhuhuhuhuhuhuhuhuh

    2. They misspelled “Fools”

    3. She lives in NYC and cooks her own meals at home. Isnt that progress?

    4. “Steak in a box” =)

      Sounds like a good business idea for an enterprising chef.
      Something you could produce with a vacuum sealer, and a blow torch. =)

      http://sansaire.com/cook-steak-sous-vide/

  10. So, what’s the title of this post again? *** blinks ***

    1. Something about Mexican buttsex, IIRC.

  11. All searches and seizures of US citizens, whether here or abroad should be authorized before a judge.

    All such decisions by judges should become public within three years or the beginning of a trial, whichever is earlier.

  12. how do we know it’s bad?

    easy.

    look at the name.

    government acts are always named the opposite of what they are.

    patriot act.

    affordable care act.

    community reinvestment act.

    hunger free kids act (michelle’s lunch program)

    no child left behind

    this goes all the way back to the “great society” and perhaps even to the 30’s.

    i mean, it goes on and on. you can, quite literally, just assume that the effect of this sort of legislation will be the exact opposite of what it is named.

    anything called the “freedom act” is going to be horrifically totalitarian.

    with regard to doublespeak, our government is well past orwell.

  13. Still, nobody’s answered the Q I posed upthread: how people expect prohib’n to work for something like this, when it doesn’t work w liquor? Yet that’s all I hear discussed, i.e. whether to prohibit gov’t activities like these. The real Q is not whether, but how.

    1. your question is nonsense, perhaps that is why no one answered. I will.

      To think that because it is difficult to protect our rights, we just shouldn’t try. To think that because some people ar psychotic power-seekers who think they have a right to violate others’ privacy, we should just say “well, they REALLY want to do it so why try to stop them”.

      What about murder? There are people who REALLY want to murder others. Maybe even many people who want to murder others. They feel strongly about it – maybe we just shouldn’t expect to stop them and just let everyone murder everyone. Then – and this was the lowest point of your thought process – we’ll all be equally guilty and innocent at the same time. Trust me, you do not want a gray world where your guilt is simply a matter of being singled out from the crowd.

      The felons at the NSA, and their hundreds-of-thousands of workers, are only able to spy on everyone because a) they have a veneer of plausibility, and b) they have the resources/money/equipment/support to get it done.

      If we take those two things away, they can desire to spy all they want, but they will not have the ability. If there is no NSA, there is no NSA surveillance. And I do NOT think that 99.9% of hte people at the NSA are not highly motivated to spy, only a handful of very powerful at the top.

      Prohibition didn’t work because government tried to control the masses’ personal lives.

      This is not even analogous.

      1. damn it – should say “I do NOT think that 99.9% of the people at the NSA are highly motivated to spy … “

    2. I’ll reply to your question. Defund and dismantle the NSA. That building in Utah they built to house the servers holding all our communications? Flatten it. Take the top people involved, who swore an oath to uphold the Constitution, and put them on trial for treason. When they are found guilty, hang them from the lampposts along Constitution Blvd.
      I bet the remaining bureaucrats, upon seeing their peers hanged, will think twice before violating our rights.
      Repeat once a generation.

  14. Just wait for the New Deal II…bigger and more totalitarian.

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  17. Apples And Trees

    “The apple doesn’t fall far from the tree.” -Traditional Saying

    Is such the case with Dr. Rand Paul and Dr. Ron Paul? Has the apple rolled down the hill of hubris into the dark depths of populism. Let’s re?cquaint ourselves with the tree, Ron Paul.

    Dr. Ron was the only candidate amongst the Republicans who maintained consistency over the years. In that regards, he resembled lawyer Barack Hussein Obama II, who told the voters that he would pursue policies promoting quai-Marxist Socialistic Welfarism, which he has done.

    Despite allegations to the contrary, Dr. Ron was not an “isolationist”; was correct in limiting expanding presidential power, as exemplified by the appointing of so-called czars; and was correct that the “Patriot Act” (Any law so labeled automatically smacks of unconstitutional authoritarianism.) violates the Constitution.

    In 2012, voters were at the mercy of viewing contrived, supervised “debates” promoting 1) who is the wittiest and 2) who makes the worst gaffe. Those, combined with brief, televised advertisements and skewed articles by biased commentators, left most voters with insufficient information. Better to present candidates’ platforms in a standard, logical, scientifically-based format, so voters can make knowledgeable decisions.

    Fortunately, there is a way to conduct such political campaigns (www.inescapableconsequences.com). Perhaps, Rand Paul might consider employing such a way.

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