The American people are in an uproar over the revelation that the National Security Agency (NSA) has gathered billions of phone and Internet records from millions of American citizens. In response, Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-VT) has now introduced legislation that could substantially limit the NSA’s data-collection programs under both the USA PATRIOT Act and the Foreign Intelligence Surveillance Act (FISA).
While Leahy’s bipartisan legislation may sound propitious on the surface, the fact is, current FISA restraints on presidential prerogatives to gather intelligence from our enemies abroad, and those who communicate with them, may already be unconstitutional. In other words, Leahy’s legislation may be superfluous and actually counterproductive.
As Judicial Watch argued in its amicus curiae brief in American Civil Liberties Union vs National Security Agency in 2006, “Prior to the enactment of FISA, virtually every court that addressed the issue concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information and that such surveillance constituted an exception to the warrant requirement of the Fourth Amendment.”
To further weaken intelligence gathering as Leahy has proposed, could be dangerously constraining–particularly during a time of war (which continues, despite this president’s seeming unwillingness to acknowledge it). Experience shows that reforms in response to intelligence gathering abuses usually result in more government (the Department of Homeland Security), do not address the issues that need attention, and hamper legitimate intelligence collection.
So, why is the public, along with politicians from both parties, in such an uproar? Perhaps, it is because both the public and the politicians know that we cannot trust Barack Obama. And this lack of trust extends to even Democrats such as Leahy. America’s intelligence surveillance system only works if we can trust the decision makers.
Attorney General Eric Holder’s role in the James Rosen scandal provide a vivid case in point. Holder authorized a search warrant to obtain the emails and other records of Rosen, a Fox News reporter. In order to get these records, Holder approved legal language suggesting that Rosen may have violated the Espionage Act. As Breitbart reported, Holder then compounded this scandal by telling the House Judiciary Committee that he had not been involved in any potential prosecution of journalists. Just days later, it came out that he had personally signed off on the Rosen surveillance.
Little wonder that Holder has become a regular on Judicial Watch’s “Top Ten Corrupt Politicians” list. As we said in his 2012 citation, “Holder shamelessly operates the most blatantly politicized Department of Justice (DOJ) in a generation… Every day that Eric Holder remains at the helm, the Department of Justice sinks further into the abyss of cronyism, corruption, and deceit. And it is well past time for him to go.”
Obama has defended his NSA spying on American citizens by broadly proclaiming that his efforts have “saved lives.” He claims that tracking billions of phone and Internet records from millions of Americans has been “a circumscribed, narrow system” with every intercept potentially relating to a terrorist investigation. The American people aren’t buying it. Hence the Leahy move, however misguided, to rein Obama in. And it doesn’t help that the NSA’s chief, Admiral James Clapper, seems to have been purposefully misleading, to put it charitably, when he testified under oath that the NSA does not collect data on Americans.
There are legitimate reasons for allowing trusted government officials to gather intelligence from our enemies abroad, and those who communicate with them — with the emphasis on the word “trusted.” But I do not trust Obama or this government generally to follow the law and not abuse the powers entrusted to them by the American people. This administration has a habit of abusing its authority (the IRS), ignoring the law (immigration), and lying about national security (Benghazi). Congress and the American people are therefore right to question the seemingly senseless gathering of data on every American with a phone. Given the Obama record, further revelations about the NSA will likely show that the administration was indeed abusing its authority, ignoring the law, and lying about national security.