Last week, the Senate failed twice to stop debate on two bills to try to keep the Patriot Act alive in one form or another. The Senate now stands in recess. Today Senator Rand Paul (R-Kentucky) “went to the people” to remind them to stand up for their own liberties.

What the Patriot Act means

The Patriot Act has this full name: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. What does that mean in practice? It should mean letting people arm themselves, and working out ways people on the scene can support one another if someone, bent on sabotage or mass murder, launches an attack. It should also obey the Constitution. That means not breaching any of the Amendments that form the Bill of Rights.

The NSA’s Utah Data Center. Photo: S. Wilson, CC BY-SA 3.0 Unported License

It does not mean letting the government listen in on any telephone conversation it wishes, when it suits it. Which is what Section 215 of the Patriot Act does. Under that section, the National Security Agency started collecting “metadata” on every telephonic conversation anyone ever had, especially on a mobile phone, and every e-mail, too. And they told no one, until Edward Snowden revealed that to the world.

The Second Circuit Court of Appeals, earlier this month, ruled the obvious: Section 215 breaches the Fourth Amendment. That amendment says the government must have a warrant to search anyone’s person, papers or effects. Telephone metadata constitute modern “papers.” The amendment also says a warrant must “particularly describe” the place and object(s) of any search.

The Court ordered the NSA to cease and desist from its metadata dragnet on June 1. So Congress has scrambled to rewrite the law before then.

The House of Representatives hastily passed the “USA FREEDOM” Act (Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet collection, and Online Monitoring). That Act merely says the telephone companies will keep the metadata, not the Utah Data Center (see the photo).

When the Senate tried to take up the measure, Senator Rand Paul held up business for nearly eleven hours. Finally his voice failed him and he had to take his seat. But he must have done the damage. The Senate failed to invoke cloture on the so-called Freedom Act. Then Senator Mitch McConnell (R-Ky., Rand Paul’s senior colleague) moved for cloture on a measure to extend the Patriot Act for two months. That motion failed even to gain a simple majority.

The Senate then went into recess. But Mitch McConnell will call the Senate back into session on Sunday afternoon, May 31.

Rand Paul speaks to the people

Senators Rand Paul and Mitch McConnell suddenly remind any astute viewer of the fictitious Senators Jefferson Smith (James Stewart) and Joseph Harrison Paine (Claude Rains) in Mister Smith Goes to Washington (dir. Francis Ford Coppola; with James Stewart, Jean Arthur, Claude Rains, and Edward Arnold; Columbia Pictures, 1939). Like Smith, Rand Paul ran a filibuster. Maybe not for twenty-four hours (only Senator J. Strom Thurmond, D-S.C., did that well), but long enough to stop the Senate from taking an irrevocable step.

Today he published a plea at Breitbart.com, explaining his reasoning. Anyone interested in freedom should read it.

Rand Paul begins by quoting Benjamin Franklin:

Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.

Rand Paul did not give the context. He should have. The context helps his case best of all. Several settlers in western Pennsylvania asked for British Army protection against certain Native American tribes who were raiding them at the time. Franklin objected strenuously to having an army detachment on the scene. He urged those settlers to arm themselves and see to their own defense.

Rand Paul doesn’t address that. But he comes close. He reminds his readers of a singular finding by the Inspector General of the Justice Department. That officer found not one instance of a search of telephone metadata giving the FBI, or any law-enforcement agency, any indispensable help in cracking or stopping a terrorist plot. In other words, this “tool” the Patriot Act “provides” neither “intercepts” nor “obstructs” “terrorism.” How then can anyone “require” it if it does not work? More to the point, says Rand Paul, collecting such metadata is not appropriate to a free society. It amounts to unreasonable search and seizure without the particular and specific warrant James Madison said a law-enforcement officer should get.

Remember also: we have an excellent case on point. The NSA Section 215 program did not stop the Brothers Tsarnaev from killing three people and maiming countless others at the finish line of the Boston Marathon on 15 April 2013. But within hours, an ad hoc network of rank amateurs “made” both Brothers, even before the FBI did. (They also gave the lie to Alex Jones of InfoWars.com. He had suggested the government itself had planted those bombs.)

Rand Paul also cited a Pew Research Center poll. That poll said most Americans want the law to change. Argumentum a populo is never a good exercise in logic. But it shows doing the right thing, as Rand Paul now urges the Senate to do, would at least have the support of the people.

Tyrants often excuse their tyrannies by saying they gave freedom a chance and it failed. For more than a decade, a free people gave potential tyrants a chance to prove tyrannical methods would work better than a free people’s methods. Those tyrannical methods have now failed. Rand Paul calls on us to acknowledge, and do, the obvious. Let them lapse, as Thomas Jefferson and the Seventh Congress let the Alien and Sedition Acts lapse in 1801.