Rand Paul’s ‘Here’s to Crime’ Act

Andrew C. McCarthy is a Senior Fellow at the National Review Institute.


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This article first appeared in NRO.  Andy McCarthy is the director of the Philadelphia branch of the David Horowitz Freedom Center.

The notorious “civil rights” lawyer William Kunstler, in addition to his work on “political” cases (i.e., anti-American radical-leftist and terrorist cases), gladly made himself available to mobsters, too — after all, someone had to pay the bills. Invited to a dinner once after a job well done for a mafia don, he hoisted a glass to the assembled capos and button men, toasting them, “Here’s to crime!”

Gleeful crooks across the country could be giving the same toast if Senator Rand Paul gets his way. The self-styled libertarian Republican from Kentucky, firmly in his father’s tradition of overreaction to imagined constitutional violations (or, perhaps I should say, violations of an imaginary Constitution) is outraged by reports that the Defense Department’s National Security Agency (NSA) is collecting “metadata” on phone calls of millions of Americans. He has responded by introducing an absurd piece of legislation he calls the “Fourth Amendment Restoration Act of 2013.”

Naturally, the bill is unacquainted with the Fourth Amendment — either the one given to us by the Framers or even the one enlarged over time by Supreme Court jurisprudence. I use the word “naturally” advisedly. Senator Paul’s proposed law asserts: “The collection of citizen’s [ACM: I take it he means citizens’] phone records is a violation of the natural rights of every man and woman in the United States.” A citizen’s “natural right” to telephone-usage records that are actually the property of third-party service providers? I wonder what St. Augustine would have made of that.

Not content to contort natural law, Paul then works his magic on positive law. He alleges that collection of records of telephone activity (but not the content of phone conversations) is somehow “a clear violation of the explicit language of the highest law of the land.”

By “highest law of the land,” Paul is referring to the Constitution’s Fourth Amendment. The senator apparently did not read the Fourth Amendment before cutting and pasting it into his bill. It requires (in relevant part) that “the right of the people to be secure in their persons, houses, papers, and effects, shall not be violated.” Perhaps Senator Paul will edify us on how it is “clear” that a phone record, owned and possessed by a telephone service provider (not the customer), qualifies as the person, house, paper, or effect of the customer, such that the government’s acquisition of it violates the Fourth Amendment. The federal courts have consistently, emphatically rejected this implausible suggestion, holding that government’s collection of phone records does not even implicate the Fourth Amendment, much less violate it.

Maybe Senator Paul would tell us that this is just the muck those crazy left-wing judges have made of the Constitution. But what Paul is advocating is a Constitution even more warped than the “organic” one progressive jurists have contrived. His proposal bears no resemblance to the Constitution of the Framers.

In last year’s United States v. Jones decision, Justice Scalia explained (not for the first time) that the animating idea behind the original Fourth Amendment is protection of personal property. The Constitution was not deemed to be violated absent some form of government trespass. That is why, under the Fourth Amendment as originally understood, it would be a violation for police, without a valid judicial warrant, to attach a GPS tracker to a person’s car and monitor his movements (the situation in the Jones case). On the other hand, it would not be a violation to wiretap a person’s conversations by physically attaching a monitoring device to the phone company’s line on a public street, without any entry into the person’s home or trespass on his property. (See Olmstead v. United States [1928].)

This changed because the Supreme Court deviated from the original Fourth Amendment’s bright-line focus on the physical person and his property to embrace the vague concept of “reasonable expectation of privacy.” The original Fourth Amendment preserved the proper constitutional order: It instructs us on what the government must protect, while the people’s representatives in Congress are free to enact additional safeguards beyond this irreducible constitutional guarantee. By contrast, were we to rewrite the Fourth Amendment consistent with its modern understanding — assuming the written word means anything when we could evolve again at any moment — it would say: “The right of the people to be secure in whatever expectations of privacy we judges think are reasonable shall not be violated.”

Unfortunately for Senator Paul, even this new Fourth Amendment that progressives have erected on the remains of the original one has never protected third-party business records. That, in particular, includes “metadata” — customer telephone activity (not the content of conversations, but numbers dialed, time and duration of calls, etc.), records of which are maintained by service providers.

To give such third-party business records constitutional status, Senator Paul would have to get the judges to invent a newer, more expansive Fourth Amendment. So could we please drop the bunkum about how Senator Paul and his anti-government followers are “constitutional conservatives” crusading to “restore” the Fourth Amendment? If Senator Paul were actually trying to “restore” the Fourth Amendment, he’d be calling not for phone-usage records to be shielded from government but for phone conversations to be more easily monitored by government.

Besides its other demerits, Paul’s proposal is an exercise in naked partisanship. Indications are that the collection of telecom metadata began during the Bush administration. Yet, Senator Paul’s bill states: “Media reports indicate that President Barack Obama’s Administration has been collecting information about millions of citizens within the borders of the United States and other countries.” Republicans are quite right to point out that the Obama administration has abused its powers in several contexts; they are equally right to complain that President Obama’s default position when something goes wrong (as it often does with his administration) is to blame President Bush. It is sheer hypocrisy, though, to pretend, as Paul’s bill does, that telephone-metadata collection is an Obama innovation. It started as a Bush program, rooted in the PATRIOT Act’s business-records provision, which was strongly and appropriately supported by Republicans.

Moreover, it is equally wrong to imply, as Paul’s bill does, that the metadata collection is of a piece with other scandals involving Obama’s abuses of power. As Senator Paul well knows, the IRS scandal, spying on the media, Benghazi, Fast & Furious, etc., involve unilateral executive-branch lawlessness, stonewalling, and/or overreach. In contrast, the ongoing phone-record collection is the lawful, statutory retention component of a program with extensive civil-liberties protections. Significantly, these protections prohibit the government from inspecting the retained records without judicial approval based on a demonstration of reasonable suspicion of terrorist activity.

Perhaps the worst aspect of Paul’s irresponsible proposal is how it would cripple law enforcement.

In its précis, the bill professes its objective “to stop the National Security Agency from spying on citizens of the United States.” That in itself is ridiculous — the NSA is not “spying” on Americans; again, it is lawfully retaining records that it is not permitted to sift through absent court approval — in a program that also includes an exacting regimen of legislative oversight. But that’s not the half of it. After Paul gets through bloviating about natural rights and botching the Fourth Amendment, his bill gets down to brass tacks. The target is not merely the NSA but the entire government. The proposed law states: “The Fourth Amendment to the Constitution shall not be construed to allow any agency of the United States Government to search phone records of Americans without a warrant based on probable cause” (emphasis added).

Hate to break this to you boys and girls, but “any agency of the United States Government” includes the FBI, the DEA, and every other agency performing everyday law enforcement — the police work that provides law and order, without which there can be no liberty. I do not know what, if any, familiarity Dr. Paul has with how law enforcement works, but it would be next to impossible for police to make cases against organized-crime groups, drug cartels, and other large-scale criminal enterprises if they had to have probable cause of crime before they could obtain phone records.

Records of telephone usage are not constitutionally protected under any credible construction of the Fourth Amendment — not the original Fourth Amendment described and applied by the Supreme Court in the aforementioned Jones case, not the Fourth Amendment as enlarged by the “reasonable expectation of privacy” jurisprudence beginning in the mid 20th century. As a result, criminal investigators and grand juries routinely obtain telephone-usage records by issuing subpoenas and applying for “pen registers” — devices applied to phone lines that enable investigators to learn the time, duration, and subscriber numbers involved in telephone calls. This information, coupled with physical surveillance of suspects, is typically how police build probable cause that crimes are being committed. They need to meet that threshold because the Fourth Amendment has always protected a person’s property, and our jurisprudence (along with federal statutes) extends this protection to the content of telephone conversations and other electronic communications. Consequently, to search property or monitor conversations, police must obtain search or eavesdropping warrants.

If, as Senator Paul proposes, law-enforcement agencies had to have probable cause before they could get telephone-usage records and pen registers, there would be far fewer search and eavesdropping warrants. Were that to happen, the most culpable, most insulated members of criminal organizations could no longer be penetrated by investigative techniques that police have been using, lawfully and with great public support, for decades — for as long as there have been phone records. The most efficient, most threatening criminal organizations would operate with impunity.

Perhaps he does not realize the ramifications, but Senator Paul’s proposal will not protect Americans. Our prosperity hinges on effective law enforcement. We have thus derived great benefit, and suffered little discernible harm, from the fact that police have long been permitted to acquire third-party phone records without a warrant. The Paul proposal is, instead, a boon for lawbreakers. That it should be proposed under the guise of a “Fourth Amendment Restoration” is perverse.

Here’s to crime!

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  • Jakareh

    Leftists are evil, but libertarians are nuts. The Pauls, père et fils, who previously showed great concern about jihadist scuzzbuckets being droned overseas are a showcase of libertarian lunacy.

  • Roger

    What a tool for big government, by this same logic background
    checks don’t violate the 2nd amendment because that’s not explicit in the
    text.

    There is a VERY big difference between a court order to get the records of a SPECIFIC individual involved in an investigation; and the default, straight-to-government-servers collecting of MILLIONS of americans records. Every individual must get an individual treatment, you cant just swoop away in bulk.

    And don’t say that this is for anything else than government power and control. The need to spy on everyone only arises because of the ignorant refusal to TARGET those that will commit terrorism: muslims with connections to jihad networks, weather violent jihad or stealth (such as NGOs that do propaganda and radical mosques)

  • Patty Villanova

    I am truly shocked at some of the conservative writers who are in this publication for promoting a jihad against other conservatives, particularly regarding whistleblower Edward Snowden. In the last few days, since Snowden’s revelations about the extent of the Obama government’s depravity and disregard for the rights of US citizens, I have seen too many conservatives bashing their fellows and defending the indefensible. For shame..

    • Steve Fraser

      I completely agree, as the Wall Street Journal, Karl Rove, Peter King, etc, etc, seem quite content as long as Big Brother has the means to “keep America safe”. Once the illegals are given amnesty, America will nationally become a one party state and Congressional hearings of criminal conduct will be a thing of the past.

    • Seek

      Are you implying conservatives should defend absurd legislation if motivated by opposition to a Democratic, as opposed to a Republican, president? Personally, I could care less what party Obama belongs to. The NSA phone meta-data ‘scandal” is much ado about nothing. Sen. Paul is a moral showboat.

  • http://onfollowingchrist.wordpress.com Paul B.

    Regarding those phone records, the constitutional right is to privacy, not to the existence of the records themselves, which is a ridiculous rhetorical distraction. The author lacks the vital perspective that if we allow these revelations to pass, there will be nothing the government can’t do against us. Obama, the Dems and the totalitarian NWO socialists have been amassing power to the government for decades, and now they are on the cusp of a complete functional takeover of the nation. Many of the very articulate and informed writers here can’t see the forest for the trees. Massive fail.

    • Steve Fraser

      And PRISM also gives the government all our emails and web searches. Remember, Obama tried to require all people doing business with the government identify their political party affilitation or contributions. America is over, friends.

  • Steeloak

    The are a couple of problems I see with your logic Andrew.
    First is that companies are also protected by the 4th amendment (if companies are held to be individuals under law – which they are). Therefore, their property (ie phone metadata) may not be demanded by government without a warrant.
    Second, we are not talking about the targeted seeking of information of individuals possibly involved in illegal activity as Bush’s program initiated. We are talking about routine data mining of everyone in order to ferret out persons of interest to the government.
    What the searches are looking for is merely a matter of programming the computers that do the searching. Today’s terrorist could easily be transformed into tomorrow’s Tea Party or Liberty activist. The same mindset that gave us the IRS targeting conservatives and leaking their information to left-wing groups is in charge of these programs as well.
    If the tradeoff for better protection of our rights from an intrusive government is more difficulty to build cases against criminals, than I would rather protect my rights.

  • Berceuse

    What an appallingly silly and stupefying essay. Mr. McCarthy has zero understanding of natural rights, and his blithe dismissal of our inalienable Constitutional protections is as ignorant as it is dangerous. By subscribing to Google or signing up to Verizon, I willingly make (some of) my data available to THOSE COMPANIES under a set and mutually agreed upon criteria. That agreement cedes nothing whatsoever to the government. That Mr. McCarthy can’t comprehend this simple but critical distinction is embarrassing. It makes the conservative movement he purports to represent look idiotic. But boy, he caught Rand Paul in a typo!!! Intellectually bankrupt much?

    • Steve Fraser

      Thanks for your thoughtful comment.

    • onesimus71

      You hit the nail on the head.

  • rlqretired

    The author correctly states, “any agency of the United
    States Government includes the FBI, the DEA, and every other agency performing
    everyday law enforcement — the police work that provides law and order, without
    which there can be no liberty.”

    However, he fails to acknowledge that under a Muslim usurper
    president, whose birth certificate and selective service registration card are
    law enforcement confirmed forgeries and is using a social security number that
    was issued in 1890 and appoints a likewise corrupt attorney general to protect him,
    traditional law enforcement protecting our liberty does not exist

  • The Dead Critic

    I have NOTHING to hide, therefore I stress not! Time to move on ladies of the Libertarian cause.

    • Steve Fraser

      “Privacy”, private property and individual “personhood” (personal identity) are interrelated. They evolved together. All are based on “mutual recognition”, both legal and psychological. (See Up From Eden, chapter 15 by Ken Wilber for the details. “Privacy” in the general sense has little to do with the ability to hide ones transgressions from others, but is the very foundation of the modern individual. When the government destroys one’s privacy by massive access to all of one’s online activities, the very phenomenon of individual personhood or identity will also be destroyed.

  • Berceuse

    Always fascinating (but horrifying) to watch the ignorant and willful respond to Orwellian abuses with Huxleyan submission.

  • HappyDog1

    The problem with America’s lawbreakers and some political pundits is that they are gripped (even if they are unaware due to the spiritual war in high places) with what the Biblical prophecies speak of as “there are those who do right in their own eyes, yet it leads to destruction” and “in the end times wrong will be viewed as right, and right as wrong”. How may this nation endure and survive if our leaders have allowed themselves to become minions of Satan? It doesn’t have a chance and it is likely why the United States (or western power nation) is even mentioned in the end times prophecies. It will have either destroyed itself by arrogance, hatred of God/Jesus, ignornace, or just pure evil…. or it just hands itself over to a global power of a union of nations under The Anti-Christ.

  • Steve Fraser

    Not to worry…Big Brother will keep us safe…..In a related story, 2 + 2 = 5.

  • Steve Fraser

    Please give some examples of both…thanks.

    • BS61

      I really don’t follow the Paul’s, but I will say that I thought that I was a libertarian until I realized they don’t really know or ignore the history of Thomas Jefferson starting the war against Muslim pirates who kidnapped Americans. They sai that TJ was against foreign intervention. I say, yes he may have been, but in the end he chose to protect American’s. TJ asked why muslims were kidnapping American’s when America was a new country who did nothing to them, and they said the Koran states all non-muslim belivers are the enemy. Keith Ellison took his vows on the same Koran that TJ brought to the WH to learn more about them.
      I urge all Libertarians to learn islamic history instead of just ours. Islam is the enemy, it’s not due to our ‘occupation’ of their land why the hated us, they have from the beginning of our country.

      I never approved of Bush’s patriot act, but at least it was supposed to only be looking at foreigner, not US citizens

  • nelly2004

    cannot stand when they introduce laws that we already have

  • Politics My Way

    Ummm…. no. By this logic, your personal information is not your property and so the government should have unfettered access to it at all times. I’m pretty sure all those crime-stopping wiretaps the writer mentions were with warrant and with probable cause. In this case it appears that the government is using that mined data to develop probable cause. Certainly opens the door up for someone arguing that the evidence obtained is a violation of the 5th Amendment.

    Maybe the right way to go about protecting this type of info is to inexorably link phone records and other personal information to the 4th Amendment by creating a law defining them as property.

    People tend to just trust our government as benevolent. Yet, this defies human nature and history.

    Whatever the government can do for you when its in your interests it can do to you whenever its in the government’s interests.

  • Sam West

    No, the so called “3rd party doctrine” is wrong. The records belong to the person who brings them into existence and the business that provides the service. Disposal of that property ought to be governed by a contract between the person and the business. There will be businesses who would not share their customers’ data with anyone and they will attract a certain customer base at a certain price. There also will be businesses that will provide their customers’ data to anyone they please and they will also attract their own customers at a likely lower price. It should be the customer’s decision which business to employ. Under the current “3rd party doctrine” people’s right to property is violated.

    If government needs those records to perform its function of fighting crime they need to present a probable cause and particularized suspicion and get a subpoena the legal and old-fashioned way. Collecting data generated by private individuals without such standard is a violation of citizens’ right to property.