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July 25, 2013

House Rejects Amendment To Scale Back NSA Cell Phone Data Collection Program

Representative Justin Amash’s (R-MI) amendment that would have reformed and limited the NSA’s collection of data from nearly every cell call in the country was defeated in a vote that crossed party lines.

A $512.5 billion Pentagon appropriations bill cleared the House Wednesday evening after the leadership narrowly beat back efforts to curb the National Security Agency’s authority to collect private call records and metadata on telephone customers in the U.S.

The pivotal 217-205 vote was the first real test of political sentiment since former National Security Agency contractor Edward Snowden leaked documents that revealed the secret program.

“Have 12 years gone by and our memories faded so badly that we forgot what happened on September 11,” asked House Intelligence Committee Chairman Mike Rogers (R-Mich.). But former House Judiciary Committee Chairman James Sensenbrenner (R-Wis.), answered as bluntly: “The time has come to stop and the way we do [that] is to approve this amendment.”

The “But September 11th!” defense for intrusive surveillance is always going to be with us. It’s a ridiculous “argument” because it isn’t one. Either the programs that are in place stand on their merits or they don’t. No one seems to be bothering to actually make the case. You’ll hear “but it’s stopped a bunch of attacks!” Which ones? How? Why didn't it stop the Boston bombing when we had advanced warning that the older brother was connected to terrorists?

Personally, “trust us” isn’t good enough. Promises that almost all of the data collected is never analyzed aren't good enough either. Distrusting the government isn’t a sign of nuttery (unless taken to an extreme of course) but rather a healthy necessity in a republic.

Former NSA and CIA director Michael Hayden comes close to making a case but he underplays the value of the data and just how intrusive it is.
Most disturbing is the reality that collecting data on EVERY call violates the terms of the PATRIOT Act no matter what the Foreign Intelligence Surveillance Court says (presumably that’s their ruling but amazingly there are secret court rulings and case law we don’t know about).

Security state advocates like Andy McCarthy are reduced to arguing for a ridiculously wide reading of the PATRIOT Act section authorizing that is plainly at odds with the statute.

In fact the only check McCarthy seems to recognize on the power of the state to collect 3rd party records is the good will of the executive branch.

The problem here is not government power. It is the government officials we’ve elected to wield it.

Yes, that’s exactly what the founders were worried about when they wrote the Constitution in order to limit the power any person or government agent could wield. Checking ALL power centers, ones we like and ones we don’t like, is a feature not a short coming of the American system.

How off the rails is McCarty? He thinks a proper reading of the 4th Amendment would make it legal for the government to listen and record your actual phone conversations without a warrant.

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.

(Emphasis mine)

In the age of ObamaCare coupled with Supreme Court decisions from a supposedly “conservative” court that allows massive intrusions into market place and personal freedom and an out of control politicized IRS, I’m not comfortable in trusting the good will of any President or bureaucracy. Government wants information and power. Sometimes it will be used wisely but not always. That’s why a healthy skepticism of claims of vague and open ended needs must be maintained. Again, distrusting the government is a feature, not a bug of our republican form of government.

I think it was good to have the debate on the Amash Amendment (though it got far too little attention). Even in failure it will set the stage for a more serious look at either reforming or replacing Section 215 of the Patriot Act as it currently interpreted.

We gave the government an inch and of course they took a mile. It’s time to take it back.

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posted by DrewM. at 09:34 AM

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