by Rand Paul
A generation of leaders has told these same lies regarding unemployment. They come from both parties. They share something in common, though: they believe the government can fix all problems, and they have to make up statistics to prove that point. If we don’t understand history and if we don’t correctly diagnose why the crisis occurred, we may well be doomed to repeat it. I, for one, will do everything I can to protect the middle class from another economic meltdown. Auditing the Fed and putting an end to crony capitalism should be an administration’s priority. It certainly would be mine.
6
Can You Hear Me Now?
there comes a time
there comes a time in the history of nations
when a country passes the point of no return
when liberty recedes and tyranny ensues
that time approaches
the time draws near
but the question remains
will we be sunshine patriots
shrinking at the first shot
shrinking at the first sense of privation
or will we stand as men and women of courage
will we stand and fight for our freedoms?
In his wonderful biography of John Adams, David McCullough describes the moment that might have sparked the American Revolution. It was on a winter’s night in 1761, and the Province House in Boston was filled with indignant colonists and merchants. Adams, then a twenty-five-year-old lawyer, had gone to the royal governor’s mansion on Marlborough Street to hear his hero argue against the Crown’s use of generalized warrants called writs of assistance.
His hero was the fiery and brilliant lawyer James Otis.
The year before, the British Parliament had reissued to soldiers and customs officials the power to enter any colonist’s home at any time to search for smuggled goods. The warrants needed neither probable cause of wrongdoing nor the signature of a judge. This exercise of power had infuriated the colonists, especially Otis. He had been the Advocate General in Massachusetts for the British government but resigned his office in 1761 in protest over the writs. Adams expected a dramatic performance from his champion.
He wasn’t disappointed.
The five judges in “scarlet English cloth, in their broad hats, and immense judicial wigs” sat by a blazing fireplace in the second-floor courtroom, Adams would recall.
But the brightest flame in the room that evening was Otis. During a five-hour oration, one in which he evoked a phrase that is perhaps the cornerstone of American freedoms—“A man’s house is his castle”—the Boston lawyer mesmerized the courtroom. “I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand and villainy on the other as this Writ of Assistance is,” Otis thundered. “It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book…”1
Otis brought the courtroom to a fever, Adams remembered. So much so, it seemed everyone there was willing to take up arms against the writs.
“Then and there was the first scene in the first act of opposition to the arbitrary claims of Great Britain,” Adams would later write. “Then and there the child independence was born.”
Two hundred and fifty-two years after James Otis’s eloquent and emotional challenge of the writs of assistance, a thirty-year-old systems administrator on contract with the NSA sat in a hotel room in Hong Kong and hit the send button on his laptop. What followed was a torrent of classified documents that exposed the NSA’s wholesale practice of warrantless spying on Americans—a revelation that no doubt made James Otis turn over in his grave.
Otis and his opposition to generalized warrants is the reason we have a Fourth Amendment, which promises Americans will “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In the United States, we don’t have generalized warrants, which the NSA uses as grounds to intrude into hundreds of millions of Americans’ phone and Internet records. The Fourth Amendment says you have to have a name on the warrant, that the warrant has to identify what the authorities are looking for, and the warrant has to say there is probable cause for them to look for it.
If a warrant with the name “Verizon” on it, seeking millions of individual customers’ phone records, is not a general warrant, I don’t know what is. James Otis wouldn’t understand the technology of today. We no longer keep our records in our house only. We keep our records on our phone, on servers, even suspended in a “cloud.” But he would certainly recognize that the principle remains the same.
The Fourth Amendment intended to protect privacy. The Fourth Amendment intended that government would have to present probable cause of a crime to a judge, who would then issue a warrant, and only then could an individual’s private papers be accessed. One’s records are no less private because we allow a third party to hold them. In fact, in our privacy contract with businesses that hold our records, we acknowledge and retain a privacy interest in those records. Our privacy contract forbids the business from sharing information about us without our permission.
When our Founders wrote the Fourth Amendment they guaranteed that the warrant would be deliberated upon and written by an independent judiciary, not a policeman, a soldier, or the NSA. Separating the power was a key element to protecting the privacy of the individual.
Big Brother
Digital technology has for the first time made the specter of George Orwell’s 1984 a reality.
When I first read 1984, I had trouble relating to it. The book made me profoundly sad, but I was just a teenager, and teenagers are full of angst for no good reason at all. I understood and was wary of Big Brother but took consolation in the fact that government did not have two-way televisions to monitor our every action. Government didn’t have drone surveillance to monitor our every move.
When I read 1984 the first time, before I had ever been in love, I had trouble connecting with Winston, Orwell’s everyman protagonist. The next time I read 1984 I was a forty-something. I had experienced love and could understand what it would be like to renounce the person you loved.
What would it take to renounce the ones you love? What would it take to renounce your rights as free men and women? We’ve fought for more than 800 years to restrain the state. From the Magna Carta on, our tradition has been to fight to limit the power of the state.
Would it take starvation and beatings to give up your right to property? Would it take rats pressed up against your face to get you to renounce your right to a trial by jury? Or will we let fear alone cause us to relinquish our guarantee to due process? Will we let fear of terrorism allow us to give up our most basic liberties?
The desire by humans to control fellow humans has always existed, as has the desire to resist being controlled.
We always had places to hide. We always had places to flee. One’s thoughts, one’s books, one’s private actions were hard to control, discern, and disrupt.
Dystopian novels were just that—anti-utopias, but not practically possible. One could always sigh in relief that such surveillance, such invasion of privacy, was not technologically possible.
The individualist who feared 1984 in 1949 need now shout from the top of his or her lungs… for technology has now made the unthinkable thinkable.
Big Brother surrounds us not only in the form of the surveillance state; we now face a government that invades even our basic right of trial by jury.
In 2011, the defense authorization bill came up in the Senate, allowing American citizens to be imprisoned indefinitely without trial. Along with a coalition of civil libertarians, I tried to remove the language allowing for indefinite detention. The sides were drawn. Proponents, filled with fear, believed that we must give up our liberties to be secure. Opponents believed, like Benjamin Franklin before us, that those who give up liberties for security will have neither.
It took hundreds of yea
rs to force monarchs to allow trial by jury, and now that basic right was taken away without so much as a whimper. Virtually all the Democrats and a handful of Republicans, including John McCain, voted to kill this assault on eight hundred years of jurisprudence.
Yet one particularly zealous senator wanted more. Not only did he want to dismiss the right of trial by jury, he wanted the bill to include the power to nullify a jury’s verdict that had already been given. This senator sought an amendment that would allow indefinite detention of defendants found innocent by a jury of their peers.
As the Senate debate heated up, as the realization that the majority had allowed detention in America without a trial, a flicker of rebellion occurred.
Amendment sponsors wanted a voice vote, a process usually reserved for noncontroversial subjects. It was late by Senate standards, about nine o’clock. Everyone was tired and wanted to go home. I started for the door, but then I turned and came back. I asked the bill’s sponsors again, “Shouldn’t we stop this miscarriage of justice?”
The sponsors told me not to worry, that they would remove the amendment that allowed for indefinite detention in conference committee. The Democrat sponsor of the bill said the amendment only reiterated the current law. I responded incredulously, “Current law allows people found innocent to be held indefinitely? How can that be?”
It takes only one senator to force a roll call vote. I knew in my heart I had to try. The indefinite detention amendment would have passed a voice vote. I stood and addressed the chair: “Mr. President, I call for the yeas and nays.”
I did not care how strong the tide was against those of us who believed in the Constitution. I had stood my ground. For a change, those who love liberty won. A majority of the Senate decided that a citizen found innocent by a jury of their peers could not be detained.
“If the evidence does not support conviction, it would be against everything we believe in and fight for in America to still allow the government to imprison you at their whim,” I said that night. “Tonight, a blow was struck to fight back against those who would take our liberty.”
We are becoming what George Orwell once feared. The state is increasingly, and frighteningly, less respectful of the individual and more certain of its own omnipotence. This authoritarian trend has been as rapid as it is dangerous. Today the breadth of government spying on citizens is without precedent in our history.
And that is saying something. Let me tell you why.
J. Edgar Hoover
On February 12, 2014, I had lunch with Attorney General Eric Holder. The lunch had been previously scheduled to discuss our common interest in giving nonviolent felons a second chance and a restoration of voting rights upon completion of their sentence. The attorney general greeted me in a conference room decorated with elaborate murals and included a portrait of Bobby Kennedy. He laughed as we shook hands. “I understand you’re suing me,” he said.
That morning, I stood with Matt Kibbe and Ken Cuccinelli, the president and lead counsel of FreedomWorks, to announce a class action lawsuit against the NSA for data collection of Americans’ phone records. Along with the attorney general, named in the suit is President Barack Obama, Director of National Intelligence James Clapper, Director of National Security Agency Keith Alexander, and FBI Director James Comey. It is the largest class action lawsuit in defense of the Bill of Rights ever filed. The class of the suit might conceivably include 300 million people. We didn’t define the extent of the class, the government did, by collecting the phone records of virtually every American.
Holder and I had a cordial lunch nonetheless. As I was leaving, he mentioned that J. Edgar Hoover’s office was just around the corner from where we stood. I asked, given veritable presence of Hoover’s ghost, how Holder could condone the massive surveillance state erected by President Obama. I told him I was disappointed that our first African American president wasn’t more sympathetic to the potential for abuse in domestic surveillance.
After all, I said, surveillance was used to try to cripple the civil rights movement. You would think this president above all others would be mindful of the potential for abuse in allowing so much power to gravitate to the NSA. Holder nodded his understanding but was noncommittal. We both knew of the outrageous and dangerous domestic surveillance that went on during the civil rights era.
In those pre-mega-data-collecting days, Hoover had spied on some half million Americans. During the early 1970s, FBI agents infiltrated college campuses across the country and conducted illegal surveillance of organizations as disparate as the women’s liberation movement and the Black Liberation Army.
Americans had their mail opened, their phones bugged, and, in a precursor of the recent transgressions against the Tea Party, Hoover’s FBI used the IRS and private tax returns to collect information and apply pressure on political enemies.2
What’s more, just like the NSA does today, Hoover spied on Congress.3 In the spring of 2014, it became apparent that the CIA was secretly searching Senator Dianne Feinstein’s Intelligence Committee’s computers and reading Senate work product. They surreptitiously removed a report that analyzed the CIA’s torture of prisoners. Senator Feinstein, to her credit, called them out. “I have grave concerns that the CIA’s search may well have violated the separation of powers principles embodied in the United States Constitution, including the speech and debate clause. It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function.”4
How could we have not learned from Hoover’s abuses of civil liberty?
In her book The Burglary: The Discovery of J. Edgar Hoover’s Secret FBI, Betty Medsger tells the story of Vietnam protestors in 1971 breaking into an FBI office in Pennsylvania. The files they stole showed the breadth of Hoover’s criminal abuse of power and disregard of the Fourth Amendment.
In a magazine article about the break-in, Medsger wrote, “files revealed that African-Americans, Hoover’s largest targeted group, didn’t have to be perceived as having liberal, or even radical or subversive, ideas to merit being spied on. Nor was it necessary for them to engage in violent behavior to become a watched person. Being black was enough.”
The most explosive piece of information that came out of the break-in was Hoover’s investigation of Martin Luther King Jr. Hoover had Dr. King’s bedroom bugged to record his extramarital affairs. Just a few weeks before King was to receive the Nobel Peace Prize, the FBI sent the damning tapes to both him and his wife. The package also included a letter suggesting to Dr. King that he consider suicide. “King, there is only one thing left for you to do. You know what it is. You have just 34 days in which to do it, this exact number has been selected for a specific reason. It has definite practical significance. You are done. There is but one way out for you.”5 The letter was mailed thirty-four days before Christmas.
Again, I was struck by the irony, and as I left I continued to express my disbelief to Holder. “How could our first African American president condone pervasive spying on Americans?” I asked.
“Let’s just say the administration’s position on the NSA is not monolithic,” he said.
He left it at that, which only left me with more questions. Did the attorney general mean he was against the spying? If so, why was his voice falling on deaf ears?
As I walked away, I had an uneasy feeling and less faith than ever in the way the administration and the NSA were carrying out their surveillance program.
The Spooky History of the NSA
So just how did we get to a place where the Fourth Amendment is given no respect? Well, to answer that question you have to know a little about the National Security Agency.
If you wanted to, you could probably trace the beginnings of the NSA back to the Civil War, when telegraph cables were first intercepted. In more recent history, the NSA grew out of our involvement in World War II. In his famous Day of Infamy speech, Franklin Roosevelt promised America that we woul
d not only defend ourselves to the utmost, but would “make very certain that this form of treachery shall never endanger us again.”
FDR gave that speech to a joint session of Congress, asking for a declaration of war. It was, by the way, the last time we followed the Constitution in declaring war properly. Our Founding Fathers set up checks and balances for a reason: so that unchecked power did not accrue to one person, and certainly not the power to declare war. The president can’t declare war, or is not supposed to. A declaration of war comes from Congress.
With FDR’s declaration of war came his battle cry—“never again”—which became the de facto motto of the U.S. foreign intelligence agencies that kept FDR’s promise until 9/11. In fact, many historians credit our proficiency at intercepting messages and breaking codes with turning the tide of World War II. The Battle of Midway and the D-day invasion certainly profited from intelligence, though our armed forces paid an extraordinary price in both. A strong nation requires such tools. Surveillance and deciphering are an integral part of our national defense.
It was after World War II, however, in 1952, that the modern NSA was born, though the event wasn’t exactly announced in your local paper. For many years, the agency went about its business so stealthily that the joke was the initials stood for No Such Agency. A memorial plaque in the Maryland office reads: “They Served in Silence.”6 The agency grew from adolescence to adulthood during the Cold War. Working out of its headquarters in Fort Mead, Maryland, the NSA was never meant for domestic intelligence use. Its function was purely to spy on messages from foreign entities—mostly from the Soviet bloc. Which reminds me of what James Madison famously said. “If tyranny and oppression come to this land it will be in the guise of fighting a foreign enemy.”