The "Freedom Act": Dr. Orwell, call your office.

06/03/2015 10:55

by Brian Maher


The fate of the American Republic dangled by a hangman’s strand yesterday…That is, if you believed the keepers of consensus staffing the mainstream media outlets.

The United States Senate had to decide last evening whether to extend three controversial provisions of the Patriot Act due to expire June 1. Absent a stay of execution they’d face the firing squad at dawn. Their crime? High treason against the Constitution.

Such high stakes, so much in the balance. That made yesterday’s spectacle political theater par excellence, a 5-star production, a circus in a hundred rings.  And just in time for campaign season! The source of all the sturm und drang? Section 215 of the Patriot Act…

Section 215 is the warrant for the massive NSA surveillance of American citizens. Its proponents argue it’s an indispensable tool casting the widest possible net in the fight against terrorism. It allows the authorities the greatest chance to collar any would-be malefactors before they unleash their satanry upon us. But for its opponents Section 215 is garlic to a vampire. They argue it would rivet tyranny onto these United States while doing little to prevent terrorism. If the terms ‘1984’ or ‘Big Brother’ resonate with you at all, you understand their concerns. Their fears, to be more blunt.

And who can argue? Once government can track our private conversations, our movements, the sorts of books we read, etc., where does it stop? Many would call it paranoia to suggest the government will abuse that power. Its only concern is terrorism, they may say. And maybe that’s true -- for now. But history shows power rarely goes unexercised forever.

That’s why Jefferson, a cat who knew a thing or two about government said, “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”  There’s a reason he’s known as the “Sage of Monticello”.

And government exploits crisis in order to expand. In fact, government grows crisis by crisis. Anyone proposing the Patriot Act would have been denounced as a tyrant-in-waiting on September 10, 2001. By the end of the next day anyone opposing it was next door to Benedict Arnold.

The Battle of Section 215 pitted the present-day Jeffersons of the American scene against the bigger government Hamiltons of the same American scene. Here we had the latest chapter in the timeless tug-of-war between liberty and security, between the individual and the state. It has never resolved in open, democratic societies. It may never fully be…But is the choice so stark? Must liberty and security forever be at each other’s throats? No, not in this case at least. Section 215 can be executed without damaging national security at all.

The result of yesterday’s Senate proceedings?

Anti-climactic. The provisions in question expired as of June 1st. But they did not face the firing squad. In fact, they’ll probably be out of shackles before long and up to their usual tricks shortly after. Their expiration is likely temporary. As Rand Paul, who channeled the ghost of Jefferson by leading the charge against NSA spying bemoaned, "The Patriot Act will expire tonight. But it will only be temporary. They will ultimately get their way."  And so they probably will, Senator. And so they probably will…But their victory could very well prove hollow. In the first case, the sweeping surveillance powers granted under Section 215 never prevented a single terrorist attack. The verdict is clear. But don’t take my word for it. How about the Justice Department’s inspector general?

According to Michael Horowitz, “The agents we interviewed did not identify any major case developments that resulted from use of the records obtained in response to Section 215 orders.”  So all that spying on average Americans never did a thing to stop terrorism. He did add though, that agents did view some material they gathered as “valuable” in developing other leads or corroborating other information. Now go ahead and define “valuable.” As well define “reasonable.”  I said earlier that retiring Section 215 would not sabotage national security.


According to constitutional scholar and former federal judge, Andrew Napolitano, the government would be able to continue collecting the same data even if Section 215 was swept from the law books. Under new legislation pacing under the Orwellian name of the Freedom Act, bulk collection of American’s personal data would technically be verboten. But the feds can easily get all the same data they’re collecting now with just a little extra paperwork. They’d just have to obtain access to these records through the FISA court.

They can seek that data not on probable cause, but merely the assertion they need it. And the FISA court is essentially a rubber stamp. As Napolitano explains, out of 34,000 cases over the past 14 years, it’s only turned down 12 requests. 12! So we’re really dealing with a technicality here.

The bill has passed by the House but not yet the Senate. But I’m sure it will. And soon. In other words, the “Freedom Act,” hatched to address Section 215 mass surveillance of average Americans, is simply business as usual with a few technicalities added in to throw off the scent.

Key takeaway: nothing will change. Using sleight of hand, the government will still have access to the personal information of millions of Americans without probable cause. Maybe you think they should. I sympathize with the argument. Why give up any tool at all? But here’s the bigger question: did you expect anything different even if they managed to ditch Section 215 of the Patriot Act? Did you think they’d let the Constitution get in the way? Necessity knows no law, according to an old maxim. Put another way…Inter arma enim silent leges -- in time of war the laws are silent.

Perhaps we’ve gotten used to hearing that sound these days -- the Silence of the Law.


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