On February 28, 1933, in the aftermath of the burning of the Reichstag, Paul Von Hindenburg, President of the Weimar Republic, signed a decree “for the protection of the people and the State.” It stated: “Restrictions on personal liberty, on the right of free expression of opinion, including freedom of the press; on the rights of assembly and association; and violations of the privacy of postal, telegraphic and telephonic communications and warrants for house searches, orders for confiscations as well as restrictions on property, are also permissible beyond the legal limits otherwise prescribed.” (emphasis added). We all know what happened next.
Republicans have a long and proud tradition of defending individual liberty against government intrusion and, until recently, were rightfully skeptical of any arguments that the ends justify the means. Republicans tend to be historically literate and know that too often powers born out of supposed security concerns have become tools of tyranny and repression. But in recent years a curious blind-spot has developed among many Republicans that somehow allows smart people that are rightfully skeptical of government in every other arena of action to bestow blind and unlimited trust on that same government when it comes to matters of security.
Security is vitally important. But it is not the only important thing. And it must be balanced against the value of living in a free society. Balance means thinking critically about legislation that restricts freedom for the sake of security, and asking serious questions about whether the marginal security gains, if any, are worth the costs. The safest people in the world are those living in solitary confinement in a super-max prison. I’m guessing that even the most vociferous security hawk would not be willing to give up that much freedom for perfect safety. So the question becomes one of line drawing, and we should be able to have a debate about where best to draw the line.
That brings us to the question of re-authorizing Section 215 of the Patriot Act. Section 215 says nothing about mass warrantless collection of American Citizens’ phone or email records. But under a, shall-we-say, expansive interpretation of that section’s authorization for the FBI to obtain production of materials that assist in an investigation undertaken to protect against international terrorism or clandestine intelligence activities, it has been used to pry into many millions of blameless Americans’ communication records. The theory justifying this mass disregard for privacy is a sort of “six degrees of Kevin Bin Laden” argument that anybody’s communications might somehow lead back to terrorists. Most famously, Section 215 has been used to obtain metadata, e.g. information regarding who called whom and when, on every landline call in America. It has also been used at various times to smaller degrees for email and wireless communications, and in other ways.
A recent Inspector’s General report, based on extensive interviews with FBI counter-terrorism agents, revealed that no terrorist plots have been foiled due to the expanded government spying authorized by the Patriot Act. So the question is, does it make sense to continue intruding into millions of innocent Americans’ private communications because maybe, some day, it might turn up something useful? Can we at least talk about tweaking it so as to minimize the privacy concerns?
That was the question Rand Paul asked his colleagues when he recently filibustered the re-authorization of parts of the Patriot Act, including Section 215, and it’s the question we need to answer before the Senate revisits the issue on May 31. [mc_name name=’Sen. Rand Paul (R-KY)’ chamber=’senate’ mcid=’P000603′ ], like the vast majority of Republicans in the House that voted to end the mass surveillance program, is not opposed to all government surveillance. But he has proposed several amendments to better balance the need for intelligence against privacy and liberty concerns. In addition to ending bulk collection he would close backdoor loopholes allowing for warrantless privacy intrusions and create a constitutional advocate to ensure the FISA court hears both sides of an issue before ordering companies to turn over private information. He would also give Americans wrongfully spied on standing to sue the government, and give companies the right to appeal a demand to turn over customer information. Most importantly, he would affirm that the government cannot get around the Fourth Amendment’s protection against warrantless searches by the simple expedient of obtaining private information from third parties. The government would still be free to obtain the information it needs to conduct terrorist investigations, but it would have to make a plausible case for why it needs access to particular records.
Benjamin Franklin said “those who would give up essential Liberty to purchase a little temporary safety deserve neither liberty nor safety.” Our founding fathers believed that the right of the people to be secure against unreasonable searches and seizures shall not be violated and that no warrants shall issue, but upon probable cause. They believed it so strongly that our freedom from unwarranted search was enshrined as the Fourth Amendment to the Constitution. Let’s not give up that essential liberty for false promises of perfect safety. Let’s remember that our forefathers chose to risk death rather than live under a tyranny. There’s a reason why we’re called the land of the free—not the land of the safe. There’s a reason the bald eagle is the symbol of our country, and not a turtle. We should take reasonable measures to protect ourselves, yes, but we should never cower behind a government master, giving up our liberties for promises of protection. I don’t believe the government needs to invade my privacy to in order to protect me. But even if it did I would rather die on my feet than live on my knees.