October 27, 2021

Obama’s NSA Spying Program Declared Illegal

Obama’s NSA Spying Program Declared Illegal

President Obama’s program to spy on all Americans has been declared illegal by a federal court of appeals. This is a very interesting development considering that Congress is weeks away from having to deal with expiring provisions of the so-called “PATRIOT Act.”

The Hill reports, “the decision from the Second Circuit Court of Appeals on Wednesday represents the second major court victory for opponents of the NSA, after a lower court decision called the program nearly unconstitutional six months ago.” The 2nd Circuit Court of Appeals declared that the National Security Agency spying program “exceeds the scope” of the law.

In a unanimous decision, Judge Gerard Lynch wrote that an interpretation of Section 215 of the PATRIOT Act gives the government the same tools to “fight terrorists” as they have to fight “money laundering and drug dealing.”

The court held that “the techniques traditionally used to combat such ordinary crimes have not included the collection, via grand jury subpoena, of a vast trove of records of metadata concerning the financial transactions or telephone calls of ordinary Americans to be held in reserve in a data bank, to be searched if and when at some hypothetical future time the records might become relevant to a criminal investigation.” Basically, the Court held that Section 215 should be read like any other statute. There is no implicit legal authorization for the collection of all American’s phone records.

Last year a lower court decision in another circuit declared the Obama program unconstitutional. Now, the 2nd Circuit Court of Appeals decision held that the law does not authorize the Obama spying program and they didn’t even reach the constitutional issue.

The Fourth Amendment to the Constitution protects citizens from government spying and monitoring of private communications without a warrant. The government would have you believe that every medical record held by a hospital, every call record held by a phone company and every expense held by a credit card company is ok for the government to put in a government database. The fact is that our Founders fought a revolutionary war over General Warrants.
Thankfully, some Courts are protecting the natural right of Americans to have private communications.

This is a great opportunity for Senators Rand Paul (R-KY) and Mike Lee (R-UT) to push hard to end the spying program with legislation. No one expects the Obama Administration to respect this decision and cease collecting metadata, so it is the responsibility of Congress to force the Obama Administration to end it. Reps. Justin Amash (R-MI) and Thomas Massie (R-KY) also have a great opportunity in the House to push for strong reforms and force the Senate to deal with this issue like the Surveillance State Repeal Act. Sen. Ron Wyden (D-OR) has been a patriot in fighting these programs as a civil libertarian, so expect a strong bipartisan battle in the wake of this new decision with allies of Wyden teaming up with allies of Rand Paul.

Members have leverage because Section 215 of the PATRIOT Act is expiring. If Congress wants to push some sort of bill to authorize programs, one amendment should be to impose criminal penalties on any government official that orders the collection of metadata. If any government official violates the constitution, lock them up. In the wake of two court decisions holding that the program is illegal and unconstitutional, it is time for Congress to act.

Score one for the Bill of Rights.

Brian Darling served as Sr. Communications Director and Counsel for Senator Rand Paul (R-KY) from 2012-15. Before his tenure with Sen. Paul, Darling served in three different capacities with The Heritage Foundation. Follow him @BrianHDarling on Twitter.