So I guess Vice President Biden is getting up appearances as the Democratic Plan B, as he is making the rounds at state party functions. He is headlining Virginia’s Jefferson-Jackson Dinner on June 29. This is his third Jefferson-Jackson keynote of the year, after South Carolina on May 3 and Michigan on April 20.
Sen. Rand Paul (R-KY) said he would examine ways to block the National Security Agency’s surveillance programs before the Supreme Court, according to The Hill.
“I’m going to be seeing if I can challenge this at the Supreme Court level. I’m going to be asking all the internet providers and all of the phone companies: Ask your customers to join me in a class action lawsuit. If we get 10 million Americans saying we don’t want our phone records looked at then maybe someone will wake up and something will change in Washington.”
Well, a couple of things. First, if Rand Paul really wants to challenge these programs, the first thing he should do is sponsor a bill in the Senate to repeal the Patriot Act in its entirety. He is a Senator and legislation is his wheelhouse. The foundation for the surveillance state is the Patriot Act. Get rid of the Patriot Act, and you deal a crippling blow to all of these programs.
Second, I am not sure I want this current Supreme Court ruling forever on the Fourth Amendmnet and the Patriot Act. I am afraid of the ruling they would come up with. Although, I am encouraged by Justice Scalia’s recent dissent in a case involving the warrantless taking of DNA samples from those arrested and in police custody. Scalia sided with 3 of the 4 liberals on the Court in opposing such a warrantless search. So it is good to know that Scalia does have some limits, and actually believes there is a Fourth Amendment.
Third, regarding the process of all of this. Senator Paul cannot just wake up and head over to the Supreme Court to challenge a law he doesn’t like. The Constitution that Rand Paul so dearly loves places limits on what the Court can and cannot hear, and they are limited to hearing cases or controversies that are not moot, that involve a federal question or a conflict between citizens of different states, that are ripe for judicial action, and that do not involve a political question. And if Paul can meet all those requirements, he has to file his lawsuit in the Federal District Court, presumbly for the D.C. Circuit. And then after the District Court has ruled on the case, Paul or the Government can appeal to the Circuit Court. After the Circuit Court rules, then either Paul or the Government can appeal to the Supreme Court. So you don’t just go to the Supreme Court. And the Supreme Court can refuse to hear your case if it thinks the case was correctly disposed of in the courts below.
Indeed, regarding all the hub bub surrounding the NSA revelations this past week, I am in agreement with Andrew Sullivan: I am underwhelmed. The scandal here involves the collection, pursuant to a lawful search warrant, of metadata (i.e. statistics) involved internet usage and phone records. No one is actually listening to what is being said in your phone call. That was the scandal back in 2005/06 when it was revealed that President Bush had ordered the unlawful and warrantless wiretapping of phone calls. When I see people comparing the recent disclosures to that episode, I get a little upset at the stupitiy. One was legal. One was not.
The real issue here is that many think it should not be legal. The government should not be able to collect this data, even with a warrant. Ok. Well, the issue then is the Patriot Act. Your efforts should be directed at repealing that law, or electing candidates who will repeal it, rather than being angry at the Obama administration for doing what the law allows. Secondly, I assumed, once the Patriot Act was passed, the government was already doing this, with the this being data-mining. If you are shocked this week, I dare say you are quite naive. No, I think the hub bud or “outraged reactions” are less than severe and more of an effort to gin up support for the repeal or at least modification of the Patriot Act. And I am all for either.
A side note: I really wish someone other than Glenn Greenwald was the point person on this. His past as a purist blogger and his demeanor rubs me the wrong way. But whatever.