Rand Paul’s N.S.A. Lawsuit: Campaign Stunt Or Real Legal Threat? Does It Matter?
If something is going to be done about an out of control National Security State, it'll be because the American people demand it.
Earlier this week, to much fanfare, Kentucky Senator Rand Paul announced the filing of a lawsuit in Federal Court in the District of Columbia against President Obama and other parties in the intelligence community related to the National Security Agency’s data mining and wiretapping programs which have come to light over the past half year thanks to the documents released by former NSA contractor Edward Snowden:
WASHINGTON — Senator Rand Paul, Republican of Kentucky, on Wednesday filed a lawsuit against President Obama and the leaders of several intelligence agencies. The suit challenges as unconstitutional the National Security Agency’s once-secret program that is collecting bulk records about Americans’ phone calls.
Mr. Paul, who had announced his intention to file the lawsuit in early January, joins an increasingly crowded set of plaintiffs, with several similar cases already pending.
But because of Mr. Paul’s status as a rising star of the Tea Party faction of the Republican Party — one who staged a nearly 13-hour filibuster on the floor of the Senate in March raising concerns about the rules governing “targeted killings” using drone strikes — his lawsuit may attract particular attention.
“Today we ask the question for every phone user in America: can a single warrant allow the government to collect all your records, all the time?” Mr. Paul said in a statement. “I don’t think so.”
FreedomWorks, the conservative and libertarian advocacy group, is listed as a co-plaintiff in the lawsuit. The lead lawyer is Kenneth T. Cuccinelli II, the former attorney general of Virginia. Bruce Fein, a former Reagan administration attorney, is also among the lawyerson the case.
The Obama administration has defended the program as lawful, noting that 15 judges on the Foreign Intelligence Surveillance Court have authorized it for 90-day intervals dating back to 2006. A 1979 Supreme Court ruling held that “metadata” — records showing that calls took place, but not their content — is not protected by the Fourth Amendment.
“We remain confident that the program is legal, as at least 15 judges have previously found,” Peter Carr, a Justice Department spokesman, said on Wednesday.
The Bush administration began the bulk call records program in 2001 based on a secret claim of presidential power, and it operated outside of any statutory or judicial framework until the court in 2006 granted a Justice Department motion to issue orders to phone companies for the records. The Justice Department motion was based on the argument that a provision of the Patriot Act that allows the F.B.I. to collect business records deemed relevant to an investigation could allow the N.S.A. to collect records in bulk.
The argument in Paul’s lawsuit, which I’ve embedded below, is similar to those that were made in two other lawsuits that have been filed in the wake of the Snowden revelations in that they allege, essentially, that the N.S.A. exceeded its legal authority and the boundaries of the Fourth Amendment when they undertook to collect and store metadata related to phone calls and Internet communications of vast numbers of American citizens regardless of who they were or who they were communicating with. In one of those lawsuits, filed in the same U.S. District Court for the District of Columbia that Paul’s suit was filed in, Judge Richard Leon ruled that the program was likely unconstitutional. In the other case, in an opinion issued just about two weeks later, a Federal Judge in New York City ruled that the program was constitutional. Both cases already seem headed down the appeals path and likely headed to the Supreme Court at some point in the future. The difference between those two lawsuits and Senator Paul’s is that his case seeks certification as a Class Action under the Federal Rules of Civil Procedure, with the potential class essentially being every person in the United States with a telephone or Internet account on the theory that each one of these class members was likely to have had data about their communications swept up in the N.S.A’s dragnet.
At this early stage of the proceedings, it’s rather difficult to judge the legal sufficiency of the claims that Paul’s lawsuit is making, or the likelihood that it will succeed on the merits. All we have to go by, after all, is the Complaint itself which, as is typical of Complaints in Federal Court contains only the allegations necessary to set forth the nature of the claim and the relief sought. The real legal action will come further down the road after the various government entities and individuals involved as Defendants have had a chance to respond. Most likely, the initial stages of the proceedings will be tied up in efforts by the Defendants to dismiss the case on the ground that it fails to state a legally sufficient claim as well as the far more complicated issues surrounding the effort to certify the case as a class action. When we’re at that point, the various pleadings will set forth the legal claims and defense in far more details than we have now and it will be easier to judge the sufficiency of the allegations.
Despite this, some legal commentators have already started chiming in on the viability of Paul’s lawsuit. Not surprisingly, Andrew McCarthy at National Review contends that the lawsuit is essentially frivolous:
By its straightforward terms, the Fourth Amendment protects Americans from unreasonable searches of “their persons, houses, papers, and effects.” The metadata records collected by the NSA are not even Senator Paul’s own property; they belong to various phone companies (to whom the court’s Section 215 production orders are directed). So if we’re going to be constitutional conservatives — you know, faithful to the original meaning of the Framers’ handiwork — exactly what part of Senator Paul’s person, house, papers, or effects are business records that belong to a third party, not to him?
No part, of course. What is confirmed in Senator Paul’s lawsuit is that he is not relying on the original Fourth Amendment but on the kind of “organic” judicial hocus-pocus that self-styled constitutional conservatives purport to reject — in this instance, the “expectation of privacy” test. Paragraph 16 of the lawsuit avers that Paul and other people who make phone calls “hold subjective expectations of privacy over their collected, retained, and searched telephone metadata.”
I have highlighted “their” to underscore how wrongheaded Senator Paul’s claim is from a Fourth Amendment perspective. The records in question are not theirproperty; the records belong to the phone companies. To be sure, the records kept by Senator Paul’s service provider regarding usage of Senator Paul’s phone areabout him; but they are not his property.
The Fourth Amendment is about personal property rights — specifically, preventing government from trespassing on the four aforementioned categories of intimate personal property (again: your person, house, papers, and effects). You have no rights in other people’s property. If you keep a journal and write notes about Senator Paul in it, the Fourth Amendment gives him no protected interest in your journal.
That is a settled doctrine of Fourth Amendment law. It endures despite the “expectation of privacy” addendum that the Supreme Court grafted onto the original Fourth Amendment beginning in the 1960s. This more elusive privacy protection was added to the concrete protection against trespass in order to address concerns about technological advances that enable government to intrude on your property without a physical trespass — e.g. to conduct electronic or thermal surveillance from a remote outpost, monitoring your voice communications or activity inside your home. But to implicate the Fourth Amendment, it still had to be your personal property, not someone else’s.
As a matter of law, McCarthy is mostly correct in his restatement of the current state of Fourth Amendment law. By and large, if you’re talking about something that is in the custody of a third-party then the Fourth Amendment is not implicated, both because of the possibility that we’re talking about the property of other entities or people and because the property or information in question is not within the reasonable expectation of privacy of the person asserting a violation the Amendment. What McCarthy misses, though, is the fact that the analysis of the legal sufficiency of a claim shouldn’t necessarily end there. There’s no doubt that the government Defendants in this lawsuit will raise arguments similar to those that McCarthy does. In response, the attorneys for the Plaintiffs will likely respond that the old standards upon which their arguments are based need to be re-examined in light of the extent to which public attitudes and expectations toward the scope of personal privacy have changed in the digital era. That, essentially, is the path that Judge Leon took in the decision that he handed down in December. Whether the Circuit Court of Appeals, and ultimately the Supreme Court, will agree with him is a matter for speculation at this point, although it must be admitted that the current Supreme Court has been exceedingly conservative when it comes to Fourth Amendment issues and reluctant to expand the zone of protection granted by the Amendment. Nonetheless, as long as there is a good faith argument for the extension or modification of existing law, which there certainly is in this case as Judge Leon’s opinion itself demonstrates, then it is absurd to call the Complaint “frivolous.”
Interestingly, McCarthy does concede that there is a potential argument against the N.S.A. program that doesn’t involve the Fourth Amendment:
It is true that the NSA’s program may beillegal. But that has nothing to do with the Constitution. It is a question of compliance with Section 215 of the PATRIOT Act, the statute pursuant to which the data collection takes place.
As I’ve explained before, that question turns on the interpretation of the word “relevant” as used in the statute, meaning: Is the collection relevant to investigations to prevent international terrorism?
Paul’s lawsuit doesn’t presently make an argument under Section 215, however there’s no reason why it could not be amended in the future to assert such claims as long as such an Amendment is in compliant with the Federal Rules of Civil Procedure. Again, whether those arguments have legal merit or not is something for a Judge to decide.
Leaving aside the legal arguments, which will likely take some time to decide and may end up being the subject of several back-and-forth appeals and rehearings, there is a definite political narrative to Paul’s lawsuit as well:
Paul v Obama in 2014 could be an effective way of helping Paul v the Democratic candidate in 2016, if he runs for President.
It’s no secret that Paul is considering such a step, but nothing’s official yet.
“I keep looking at my schedule and I see New Hampshire, I see Iowa, I see South Carolina and I don’t understand why I keep going to these states.” Paul said Sunday about the three key nominating states on Dallas TV station KXAS’s program “Lone Star Politics,” according to the Dallas Morning News.
Paul has crossover appeal on issues of war and national security that might help him down the road.
According to a January poll by Quinnipiac, 48% of American support the phone surveillance program and 47% oppose. Similarly, 48% say it’s necessary to keep Americans safe and 46% think it’s not necessary. Additional polls show the split does not cut along party lines.
And Paul’s lawsuit is bursting with politics.
Signed on to Paul’s lawsuit is anti-establishment political organization FreedomWorks. Representing them is Ken Cuccinelli, Virginia’s firebrand former attorney general, who lost his bid in November to be Virginia’s governor.
Paul is also promoting the suit through his political action committee, RandPAC, and while he said the legal move could impact hundreds of millions of people, he is asking 10 million of them to sign on to the class-action suit through his website.
While Paul’s criticism of the government’s surveillance programs has rankled both Democrats and Republicans who believe the program keeps Americans safe, he is also receiving bipartisan support.
Jenny Beth Martin, co-founder of Tea Party Patriots, said Paul’s suit follows his principles of limited government.
“I think it first and foremost is practical and necessary that we define the role of the NSA in terms of the Fourth Amendment in terms of today’s modern technology,” Martin said, praising Paul.
On the other end of the political spectrum, the American Civil Liberties Union said it generally agrees with Paul’s efforts to rein in the program.
“We agree with his view of the program and hope it will bring an end” to the surveillance program, Patrick Toomey, an ACLU staff attorney, said.
The ACLU also filed its own lawsuit six months ago against the program and hosted a day of action on Tuesday that resulted in 266,000 calls and emails to members of Congress opposing the mass surveillance program created to boost U.S. counter terror abilities.
Could Paul really launch a Presidential campaign based on his opposition to the N.S.A.? There’s no question that the program has not fared well in the polls, but I have to wonder just how far Paul could ride his opposition to it, either in the race for the Republican nomination or in the General Election in the unlikely chance that he did get the nomination. Indeed, my instincts tell me that Paul’s position on this and other foreign policy issues is one that remains somewhat outside the mainstream of the Republican Party, albeit not nearly to the extent that his father was. Nonetheless, the lawsuit does demonstrate yet another manner in which Paul has put himself at the forefront of issues like this. If he can somehow use that to help make civil liberties issues and a non-interventionist foreign policy then perhaps the lawsuit will accomplish something even if it does end up being decided in the government’s favor. Because, ultimately, if something is going to be done about an out of control National Security State, it’s going be the American people who do something about it.
Here’s a copy of the Complaint: