Taking a Stand

by Rand Paul

  For the next couple of decades, the NSA ran silent and deep. It was during these years that technology, especially in computation and communication, developed rapidly. Although novelists and movie directors were enamored with the FBI and CIA, it was the NSA that owned perhaps the biggest advancement in spy craft. It was also during these years that the NSA began to spy on Americans.

  James Bamford has written four books about the NSA. In his first, The Puzzle Palace: Inside the National Security Agency, America’s Most Secret Intelligence Organization, published in 1982, he writes that, from its inception, the NSA was “free of legal restrictions” and holding “technological capabilities for eavesdropping beyond imagination.” “Like an ever-widening sinkhole,” he writes, “N.S.A.’s surveillance technology will continue to expand, quietly pulling in more and more communications and gradually eliminating more and more privacy.”

  That sinkhole began to widen just after World War II when Project SHAMROCK and its sister project MINARET7 began collecting all the data from telegraph transmissions to and from the United States. The Armed Forces Security Agency (AFSA), the predecessor of the NSA, ran the projects. In the 1960s, with the maturation of the computer, the NSA upgraded the program and called it HARVEST. At its height, HARVEST analyzed 150,000 American messages a month.

  As the Cato Institute’s Julian Sanchez aptly writes, “The machine was built to fight communism—but it was reprogrammed to fight democracy.”

  The extent to which democracy was being pummeled was uncovered in the mid-1970s during the Church Committee hearings. The Senate investigation was formed after Watergate and headed by Frank Church, the Democrat Senator from Idaho. The public unraveling of Nixon and his presidency, combined with Hoover’s wanton abuse of power, which was also investigated during the hearings, had America angry and suspicious of government—not a bad national mindset, if you ask me. Our Founders never intended for Americans to trust their government. Our entire Constitution was predicated on the notion that government was to be restrained and minimized as much as possible.

  With the Church hearings, America got its first look inside the NSA. What they saw disturbed them.

  “The United States Government has perfected a technological capability that enables us to monitor the messages that go through the air,” Senator Church said on Meet the Press.8 “At the same time, that capability at any time can be turned around on the American people. And no American would have any privacy left—such is the capability to monitor everything… There would be no place to hide.”

  Church’s televised remarks weren’t the only prescient moment of the hearings.

  During the questioning of Air Force general and NSA director Lew Allen, Senator Walter Mondale wondered what NSA’s future held. “What we have to deal with,” the senator said, “is whether this incredibly powerful and impressive institution that you head could be used by President ‘A’ in the future to spy upon the American people.”9

  If my math is correct, our current president was a sophomore or junior in high school at the time. I assume (and I know you can get in trouble doing such, but I’ll go out on a limb) that Barack Obama at the time didn’t give the Church Committee hearings and Senator Mondale’s warning a second thought. He might, however, want to go back and read the transcripts.

  In 1978, as a result of the Church Committee and the exposure of domestic spying by the NSA,10 Congress passed the Foreign Intelligence Surveillance Act, and President Jimmy Carter signed it into law. The bill was meant to safeguard the American people from the NSA by establishing the Foreign Intelligence Surveillance Act court, which was supposed to approve only legitimate surveillance requests. So far, so good, right? Except for one minor detail. The FISA court would conduct its business in secret. Not only was the public denied access to the court, only lawmakers in classified settings were apprised of its proceedings.

  So what does the FISA court look like? Well, even my access is limited, but from what I know the court is physically housed in a windowless room in a secure area of the U.S. District Court on Constitution Avenue in Washington, D.C. Eleven federal district judges make up the court, and they sit for seven-year terms. They perform the FISA tasks in addition to their regular duties. The chief justice of the Supreme Court appoints the judges. Neither the executive nor the legislative branches of the government are included in the selection process.

  The greater mission of the court is to issue permission or search warrants for the purpose of gathering foreign intelligence information, for example, on foreign spies, foreign terrorists, and other threats from abroad. Or at least that’s what it was set up to do. The government has to demonstrate to a FISA judge that the information it wants to collect is relevant to an international terrorism investigation. Targeted individuals are not allowed legal representation.

  Though the court was set up as a safeguard, without transparency there is no way of knowing if the American people are being protected from the spy agency. Advocates for the FISA court say the exceptions to privacy protections were narrow in those simpler days.

  Then we were attacked on September 11, 2001. In the aftermath of that terrible tragedy the balance between liberty and security tipped precipitously toward security, without protections for freedom and privacy. Though I wasn’t a senator at the time, it’s easy for me to imagine how high emotions were running in Congress. But history has taught us that laws passed in the heat of battle can do more harm than good in the long run.

  The wording of the Patriot Act allows the NSA to obtain any “tangible thing” that is “relevant to an authorized investigation.”11 So what does the NSA define as relevant? Everything and everybody. Every single American citizen could theoretically be a potential terror suspect and therefore can be spied upon without their knowledge, or so the government’s logic now goes. This new definition is what inspired Patriot Act author Rep. James Sensenbrenner to speak out against the NSA and promote legislation to rein it in.12 We literally have no idea how much information our government has on us, and by the government’s loose rationale it can obtain as much as it likes for virtually any reason.

  Since 2001, the FISA court has approved on average 1,800 warrants a year for wiretaps and searches. And for the first time since the writs of assistance, we allow warrants to be written by soldiers, or their modern-day equivalent, the police and the FBI. Calling them National Security Letters, FBI agents now write tens of thousands of warrants each year, with the total number reaching far into the hundreds of thousands.13

  Most FBI agents are hardworking, honest, and would never think of abusing their power. I know wonderful men and women in law enforcement. I play golf on occasion with my local FBI agent, and we have discussions on this topic.

  I believe he would do what is right, but our system is not set up so that I should have to believe that. We write rules to protect us against those who may not always do what is right. We separated police power from the judiciary for a reason: so the emotion of the chase, the adrenaline of pursuit, would not cloud the judgment of probable cause.

  In the same way, I don’t ascribe bad motives to the president. But it’s not enough for the president to argue, “I am a good man and will never abuse this power.” Power must always be circumscribed. Madison realized this when he wrote in the Federalist Papers that even if the government were comprised of angels, we would need Constitutional limitations on power.

  President Obama fundamentally misunderstands the concept of the separation of power, especially when it comes to the National Security Agency and the way it tramples the Fourth Amendment. That doesn’t make him a bad person. It just makes him a bad president.

  The tendency of power is to corrupt. The historical examples of this are plentiful. Power needs to be reined in because we never know when a leader will arise who will use the power to target Jews, or blacks, or Evangelical Christians, or the Tea Party, or any other minority. Or as Senator Mondale warned us, when “President A” uses the agency to spy on ordina
ry Americans.

  It’s not just the executive branch that can be seduced by power. If the legislative body that makes laws also had the power to enforce them and to try them in court, it would lead to “tyranny,” as James Madison said.

  Supreme Court Justice Louis Brandeis once said, “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.”

  After terrorists attacked our country, that well-meaning zeal Brandeis cautioned us about was in full force and brought about poor decisions. After 9/11 we gave the police the power to write warrants because we believed that it would help us stay free and safe. In 2001, George W. Bush issued an executive order that instituted a program called StellarWind, which allowed the NSA to look at the content of Americans’ email and phone calls to overseas. StellarWind was the beginning of the post-9/11 assault on the Fourth Amendment. Because of President Bush’s overreach, the Bill of Rights protection of our privacy began to fall apart.

  During my first hundred days in Congress, the Patriot Act neared its sunset. Provisions were added to the act that required Congress to revisit the law outside of the “Climate of Crisis,” as the Christian Science Monitor called the atmosphere in which it was conceived. I fought to let the law expire, or at the very least to have it amended, specifically its violation of two personal freedoms. One powerful senator looked at me with great concern and said, “But what will happen if the Patriot Act expires at midnight?” as if the country would immediately be overrun by extremists if it did. I cracked a little smile and replied, “Maybe we could rely on the Constitution for a few hours.”

  Bush’s Patriot Act represented the opposite of the Constitution’s mission. Based on fear, it depended on Americans forgetting or ignoring our rights, and allowing big government to be unleashed. The Patriot Act was about forgetting to protect privacy. The Patriot Act was conceived with the naïve notion that government will only act for good and will never abuse its power.

  I pushed the Senate to the deadline on the Patriot Act vote—I was the only senator holding it up. The Senate ultimately allowed a vote on two amendments that I had fought to include. For a freshman senator to force such action is extremely rare, and my colleagues weren’t too happy about it. Republicans and Democrats alike were in agreement—the war on terror trumped the Bill of Rights. One of my amendments would have ended the requirement that banks file suspicious activities reports on hundreds of thousands of innocent customers without a warrant and without probable cause. My other amendment would have forced the government to get a warrant before searching gun ownership records. Though I lost both votes, across the country gun owners and privacy advocates took notice. Although the Patriot Act extension ultimately passed overwhelmingly, I had put the Senate on notice. There was a Bill of Rights defender in their midst with whom they would have to tangle at every turn.

  Over time, Congress has expanded this assault on the Fourth Amendment. A FISA amendment was passed for the purpose of allowing government to intercept foreign emails outside the United States that might be “relevant.” We already know that the federal government’s definition of relevant is at best hazy. We now also know that under these provisions, the NSA uses supercomputers through a program called Upstream to collect countless emails. It has already been shown that many of these emails were and are domestic, not foreign.

  As the CATO Institute’s Julian Sanchez wrote in his piece “Decoding the Summer of Snowden,”14 the scale of the NSA’s interception is so massive, it is likely that the agency is collecting upward of 56,000 “wholly” domestic emails annually. What that means is emails that don’t travel outside the United States—it means Americans emailing other Americans in America! This is a practice that is in direct and, I would say, hostile disregard of FISA and the Constitution.

  The NSA also has a program called PRISM in which the agency bullies Internet companies like Google, Apple, Microsoft, and others to monitor online communication. How much monitoring? We don’t know exactly. We do know that the government’s logic in what it thinks it can do is so broad that its scope is basically unlimited in seizing our online communications. Sanchez writes that the blanket surveillance orders “resemble nothing so much as a modern version of the ‘general warrants’—or ‘writs of assistance’—that outraged the American colonists and inspired the Fourth Amendment. They may ‘target’ information about foreigners, but they give the NSA—not neutral judges—the discretion to determine which particular ‘places’ and digital ‘papers’ will be searched or seized.”

  The war on terror provisions had morphed into an unrestrained, very expensive, and secret war on American citizens.

  Secret, that is, until the then unknown systems analyst hit his send button.

  The Leaker vs. the Liar

  In January 2013, a documentary filmmaker named Laura Poitras received an anonymous email from someone claiming to have extraordinary access to explosive surveillance material.15 Ms. Poitras was working on a film about surveillance at the time. At first skeptical, she eventually agreed to meet the mystery man in Hong Kong to see what he had. She brought along her writing partner, journalist Glenn Greenwald.

  Mr. Greenwald worked as columnist for the American version of the British newspaper The Guardian. It was The Guardian that broke Edward Snowden’s story.

  In the video that accompanied the online news piece, Snowden told his interviewers that his reason for leaking the documents was that he didn’t want to live in a world where there wasn’t privacy, and therefore no room for intellectual exploration and creativity. He said he didn’t do it for money or personal gain. He thought what the NSA was doing was “an existential threat to democracy.”16

  Snowden would also later say that he made his mind up to release the documents in March 2013 after seeing the director of National Intelligence, James Clapper, tell a Senate committee on intelligence that the NSA was not collecting data on any Americans. Snowden’s leaks proved Clapper a liar and showed us that the NSA is a giant, indiscriminate vacuum cleaner of personal phone conversations. So why does this matter? There are some who say the NSA is keeping us safe, so leave them alone. Others say, as Obama told the press, that the NSA does not abuse its power, so why make a big deal about it? Still others say they are not listening in. If you are doing nothing wrong you have nothing to fear. It’s only metadata! It doesn’t matter.

  I say it’s a tragic retreat from a standard of innocent until proven guilty.

  And metadata does matter.

  Two Stanford students recently developed an app called Metaphone, which collects metadata just like the NSA. Some 500 people participated in the experiment. What they found was that metadata is easily distilled into personal information. By using ordinary phone books available on the Web, like Yelp and Google, they were able to identify 95 percent of the places and people to whom the calls were placed. So say you’re dialing a suicide hotline or a doctor who specializes in diseases you don’t want anyone to know about. Metadata gives them that information. Or say you’re calling a divorce lawyer, or an unpopular political group, or a gun shop, or even just a boyfriend you don’t want your other boyfriend to know about. All of that information is available through metadata. Those who have metadata can figure out what religion you practice, who you voted for, what diseases you have, your sexual identity, and the list goes on ad infinitum.

  To those who argue that metadata’s no big deal, consider that the former director of the NSA said, “We kill people based on metadata.”17

  The documents released by Edward Snowden revealed a secret FISA court order approving the collection of metadata from the phone companies AT&T and Verizon, and Internet giants Microsoft, Google, and Facebook.

  I don’t know about you, but when I first heard about metadata the first question that popped into my head was just how many people are there in a metadata? I have to tell you, I actually asked that question in a classified briefing. I asked how many Americans the government has sp
ied on since 9/11 through the use of drones, legal search warrants, illegal search warrants, federal agent–written search warrants, and just plain government spying. Even if they did give me an answer, it’s classified, so I can’t share the number with you. Ah, the heck with it! There’s enough secrecy surrounding the NSA as it is.

  It was a gazillion. That’s, of course, a made-up number—so I can’t be accused of revealing secrets. But, the truth is, in the past decade the U.S. government has collected records on an unimaginable number of U.S. citizens.

  We really have no idea how much our government is spying on us. Recent revelations exposed the United States Postal Service’s massive surveillance program. The USPS approved nearly 50,000 law enforcement surveillance requests last year to track your mail.18 What we have learned is disturbing enough. What we might learn in the future may very well reveal a government with absolutely no limitations on its ability to monitor citizens. The comparison of the modern United States to Orwell’s Big Brother is not hyperbole. It is far closer to fact than even the NSA’s most strident apologists are willing to admit.

  It could very well be that every single American is under surveillance.

  The NSA can also tap into email, contacts, and notes on your smartphone. It can tell where you are and where you’ve been.19

  With the Banking Privacy Act of 1986, the government can also go back as far as it wants and read emails more than six months old on any device without a warrant. Senator Mike Lee and I have put forward a bill to end this practice.

  Supposedly, the NSA is allowed to search only phone numbers that have a connection of “reasonable suspicion” to a foreign terrorist group. Those search parameters are not very restrictive, however. They include records of people three “hops” from a suspicious number, according to Cato’s Julian Sanchez. “If you’ve ever called anybody who has called anybody who has called anybody who has called a suspect, your phone logs can be copied into a second database for analysis unencumbered by all those pesky restrictions,” Sanchez wrote.