National security dims Republican opposition to ‘Big Gov’

The Apotheosis Of Barack Obama by Terresa Monroe-Hamilton
The Apotheosis Of Barack Obama by Terresa Monroe-Hamilton

WASHINGTON, November 20, 2014 – Republicans like to tell us that Democrats are the party of “big government,” and in some ways they are right. Tonight we confront a president who, when it comes to immigration, has decided to make his own law by decree, something he once said would make him an “emperor.”

Many Democrats, it is true, never met a government rule or regulation they could not embrace.

But Republican opposition to big government has its limits. All that is necessary to get their support for government intervention in our lives is to invoke “national security” as the reason.

In mid-November, a group of Republicans defended the National Security Agency’s invasion of the privacy of millions of Americans by filibustering a bill that would have ended the agency’s phone wiretapping program, saying it is more necessary than ever as a result of threats to our “national security.”

The vote, in which 41 Republicans and one Democrat banded together for the filibuster, leaves the most controversial part of the Patriot Act in place. It also ends efforts to rein in the NSA program for the foreseeable future, because Republicans will take control of the Senate early next year and are unlikely to revisit the issue.

“This is the worst possible time to be tying our hands behind our backs,” said Senate Republican leader Mitch McConnell, who pointed to the advance of ISIL in Syria and Iraq. Not really explaining how invading the privacy of Americans would assist in combating ISIL, McConnell declared: “The threat from ISIL is real. It’s different from what we’ve faced before. And if we’re going to overcome it—if our aim is to degrade and destroy ISIL, as the president has said—then that’s going to require smart policies and firm determination.”

The Senate vote was a blow to privacy advocates, who won overwhelming support in the House this year for a bill that dramatically curtailed NSA spying and other bulk-records collection by the government. The advocates tried to build a conservative-liberal coalition, as they did in the House, but Senate Republicans resisted.

“Tonight, Senate Republicans have failed to answer the call of the American people who elected them, and all of us, to stand up and to work across the aisle,” said Judiciary Committee Chairman Patrick Leahy (D-VT), who pressed for the vote.

The NSA spying program was one revelation by former government contractor Edward Snowden, who leaked its details 18 months ago and started a debate over the scope of government snooping. Under the program, which the Obama administration justified under Section 215 of the Patriot Act, the NSA demanded that phone companies turn over the metadata involving millions of phone calls made on their services.

The information was stored for years. In defending the program, NSA officials initially said it helped them halt dozens of potential terrorist plots. According to Sen. Leahy, this claim turned out not to be true. In fact, he reports, data indicate the spying may have played a role in a single potential attack.

There were some divisions among Republicans. Sen. Ted Cruz (R-TX) backed the legislation along with Sens. Dean Heller (R-NV), Mike Lee (R-UT), and Lisa Murkowski (R-Alaska). Sen. Rand Paul (R-KY) joined the filibuster not because he supported NSA spying but because he thought it would be helpful to ending the Patriot Act in the next Congress.

He said: “The Patriot Act was instituted precisely to widen the surveillance laws to include U.S. citizens. As Benjamin Franklin put it, ‘Those who trade their liberty for security may wind up with neither.’ Today’s vote to oppose further consideration of the Patriot Act extension proves that we are one step closer to restoring civil liberties in America.”

The phone dragnet is now being challenged in the courts by an interesting coalition of liberals, such as the American Civil Liberties Union, and conservatives, such as Judicial Watch.
The Second Circuit seems particularly skeptical of the program. Judge Gerard Lynch described the implications of the government’s justification for keeping all Americans’ phone records this way: “You can collect everything there is to know about everybody and have it all in one big government cloud.”

Other court challenges may have implications for the collection of phone records. In an amicus brief filed with the 11th Circuit in November, AT&T suggested that the Third Party doctrine—-the legal theory that the government uses to justify the claim that it can collect Americans’ phone records without a warrant—may be outdated.

The Third Party doctrine holds that people submitting information to third parties such as telephone companies have “no reasonable expectation of privacy,” but AT&T said this may be anachronistic given how reliant people have grown on communication technologies.

“The privacy and related social interests implicated by the use of modern mobile devices,” former Acting Attorney General Peter Keisler argued for the phone company, “are fundamentally different and more significant than those evaluated in the original Third Party doctrine cases.”

Supporters of ending this government invasion of privacy—-and violation of the Fourth Amendment, to which many Republicans, who call themselves constitutional conservatives, seem indifferent—-point out that the provision that the government uses to authorize the collection of phone data will expire on June 1. Members of Congress will then have to decide whether they are in favor of keeping the program or ending it.

This provision, Section 215 of the Patriot Act, is a dramatic expansion of the traditional power of government. Yet, in the name of “national security,” most Republicans seem ready to embrace it.

Indeed, those who embrace the Patriot Act are now in the process of attempting to scare Americans into giving up a bit of their freedom for the promise of greater security.

On the eve of the Senate vote, two former top national security officials wrote an article in the Wall Street Journal headlined, “NSA Reform that Only ISIS Could Love.”Former NSA Director Michael Hayden and former attorney general Michael Mukasey warned that ISIS “uses sophisticated Internet communications to swell its ranks…” This set the tone for the Republican-led assault on the USA Freedom Act.

All through history, those who sought to expand government power and diminish freedom always have had a variety of good reasons, such as “national security,” for doing so.

Justice Louis Brandeis warned that, “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in the insidious encroachment of men of zeal, well meaning but without understanding.”

In the name of “national security,” Republicans, who promote opposition to big government as a core element of their political philosophy, are prepared to see the power of government grow dramatically. Scaring Americans into giving away important elements of their freedom in the name of “national security” tells us a great deal about politicians who otherwise like to speak about a strict construction of the Constitution.

What their real goals and motives may be is far from clear. The threats to freedom come, it seems, from many parts of our political spectrum, often where least expected.

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Allan C. Brownfeld
Received B.A. from the College of William and Mary, J.D. from the Marshall-Wythe School of Law of the College of William and Mary, and M.A. from the University of Maryland. Served as a member of the faculties of St. Stephen's Episcopal School, Alexandria, Virginia and the University College of the University of Maryland. The recipient of a Wall Street Journal Foundation Award, he has written for such newspapers as The Houston Press, The Washington Evening Star, The Richmond Times Dispatch, and The Cincinnati Enquirer. His column appeared for many years in Roll Call, the newspaper of Capitol Hill. His articles have appeared in The Yale Review, The Texas Quarterly, Orbis, Modern Age, The Michigan Quarterly, The Commonweal and The Christian Century. His essays have been reprinted in a number of text books for university courses in Government and Politics. For many years, his column appeared several times a week in papers such as The Washington Times, The Phoenix Gazette and the Orange County Register. He served as a member of the staff of the U.S. Senate Internal Security Subcommittee, as Assistant to the research director of the House Republican Conference and as a consultant to members of the U.S. Congress and to the Vice President. He is the author of five books and currently serves as Contributing Editor of The St. Croix Review, Associate Editor of The Lincoln Review and editor of Issues.