TAMPA, December 17, 2013 – A federal judge’s ruling Monday confirmed what a majority of Americans already knew. The National Security Agency’s indiscriminate gathering of data on every phone call made in the United States is unconstitutional. Calling the government’s data gathering technology “almost Orwellian,” Judge Richard Leon said that James Madison would be “aghast” if he knew the government was encroaching upon liberty in such a way.
According to USA Today, he also pointed out another thing most Americans already knew. The program never has and likely never will prevent a terrorist attack.
“Given the limited record before me at this point in the litigation — most notably the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics — I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism,” the judge said.
The judge limited his ruling to the plaintiffs in the case, leaving constitutionality open for other courts to decide in other cases. The ruling is expected to be the first of many, with an expectation that the issue may eventually find its way into the Supreme Court.
Then, it’s “rights roulette” as Americans sit on the edge of their seats wondering if the government’s black-robed high priests will pronounce away more of their freedom.
It doesn’t have to come down to that. President Obama could take matters into his own hands and actually be acting within the constitutional limits of his power for a change. The president could order the NSA to cease its program, citing the federal judge’s ruling as his authority.
The president is charged to “take care that the laws are faithfully executed” by Article II Section 3 of the Constitution. That includes the laws against murder and terrorism. But the constitution doesn’t tell him how to perform that duty. It does prohibit him from doing so in a way that would violate his oath to “preserve, protect and defend the Constitution of the United States.”
A federal judge just ruled he is doing precisely that.
The president’s legacy is in serious jeopardy. He is already accused of lying to the America people, repeatedly for years, about the legislation that informally bears his name. Controversy over his administration’s handling of the Benghazi incident persists.
Despite Pollyanna assurances to the contrary, the U.S. economy remains in a depression, complete with double digit unemployment rates and Hoovervilles. Deciding not to count millions of able-bodied Americans who aren’t working and ignoring formerly middle class people living in tents under bridges doesn’t change that.
However, none of this will damage Obama’s legacy in the long term. As I have said before, history will not be concerned with health care programs or unemployment rates. It will be concerned with who attacked the fundamental principles of freedom and who risked everything to defend them.
President Obama campaigned against Bush era civil liberties violations in 2008. He denounced torture and promised to close Guantanamo Bay. It remains open.
He condemned the very domestic spying programs at issue here when run by the Bush administration, then sent his lawyers into court seeking legal justification to expand them even further. His administration has built a massive data center in Utah to store the ill-gotten information for as long as the government sees fit.
In an October 7, 2013 article, Siobhan Gorman of the Wall Street Journal called the data center “a symbol of the spy agency’s surveillance prowess.”
Warrantless government surveillance of its own citizens. Concentration camps where U.S. citizens could be tortured. Killing U.S. citizens without due process. This is the stuff legacies are made of.
The Alien and Sedition Acts still haunt John Adams’ legacy more than two centuries after his presidency. However, Adams’ other achievements in promoting liberty and peace overshadow them, including sacrificing a second term as president to prevent a disastrous war with France.
The Obama administration has accomplished nothing comparable. It continues to take a hard line against the whistleblower Edward Snowden who exposed the activity that a federal judge has now said violates the Constitution the president swore to defend. It has completed construction on a massive edifice dedicated to trampling the Fourth Amendment.
Unless he changes course now, this is what the president will be remembered for.
Mr. Obama, tear down this data center.
Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.