In March, Sen. Ron Wyden asked Director of National Intelligence James R. Clapper if the federal government had “any type of data at all on millions or hundreds of millions of Americans.” Mr. Clapper replied, “Not wittingly.”
In June, we learned that the National Security Agency (NSA) had not only been collecting millions of Americans’ phone data, but every American’s phone data — wittingly.
This astounding level of surveillance that government officials first denied quickly became something they were eager to defend. All of it was essential and necessary, we were told. President Obama and others also assured us that the NSA was only collecting “metadata” and not eavesdropping on our phone calls.
Never mind that you can learn a lot about a person by tracking their private communications, even if you’re not necessarily privy to the nature of those communications. Never mind that we have little reason to trust the government’s claims that it does not listen to our private conversations. Never mind that we have a Fourth Amendment that requires the government to acquire a warrant before it can pry into our private lives — for metadata or any other data. Never mind that we should never simply trust our government’s “good intentions” when it steps beyond its constitutional bounds.
This week, Reuters reported: “A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.”
Reuters continued, “Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin — not only from defense lawyers, but also sometimes from prosecutors and judges.”
The DEA is supposed to track drug dealers. The NSA is supposed to track terrorists. We already know that the NSA now monitors every American as a potential terrorist, something the director of national intelligence once denied.
We now know that federal agents have been trying to cover up a program that investigates Americans. Is the DEA now operating above or outside the law as well?
And if not, why the cover-up?
Government agencies backtracking their investigations to make it harder for lawyers and judges to know where a case originated do not exactly enhance the public trust. Former federal judge and Harvard Law School professor Nancy Gertner remarked, “I have never heard of anything like this at all . It is one thing to create special rules for national security. Ordinary crime is entirely different.” She concluded, “It sounds like they are phony-ing up investigations.”
Before the Patriot Act, information gained through special national security orders could not be used in regular criminal court. The Patriot Act, for the first time, allowed information gained through extralegal maneuvers to be used in criminal court for crimes unrelated to terrorism. At the time, authors of the Patriot Act said, “Don’t worry. We will never do that.” I asked former Attorney General Michael B. Mukasey precisely that question, and he reassured me, as a parent reassures a child, that we are good people, and will never use illegally obtained information in regular court. This reminds me of President Obama’s promises never to detain American citizens without trial. Only time will tell if that promise is kept.
The more you realize the incestuous relationships between these agencies, the more questions that are raised. Reuters noted, “The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security.”
The New York Times reported last week that NSA officials have been dealing internally with “other federal intelligence agencies that want to use its surveillance tools for their own investigations.”
Each new agency scandal or revelation — whether the IRS, Department of Justice, NSA or now, the DEA — paints a picture of a domestic and national security apparatus run amok. Our long-standing tradition of balancing liberty against security is now threatened by an emerging Washington mentality in which no liberty is protected against the greater need for security.
When it was revealed that the NSA was spying on all of us, Washington simply circled the wagons and defended the program. The Bill of Rights became an afterthought.
If it is discovered that agencies like the DEA are involved in similar government overreach, can we reasonably expect that the wrongdoers will be punished? Or will they be defended and, thus, allowed to continue doing wrong?
Is an unlimited, no-questions-asked police state America’s current trajectory? Is Big Brother now the new norm? Given Washington’s current standards, what are the limits, exactly, of how far the federal government can intrude into the private lives of American citizens?
The simple answer is found in our Constitution. But as with the NSA scandal, we now see a political establishment that treats the document most of them swore to uphold as a dead letter.
James Madison once observed, “If tyranny and oppression come to this land, it will be in the guise of fighting a foreign enemy.”
National security is one of government’s most important functions. So is protecting individual liberty. If the Constitution still has any sway, a government that is constantly overreaching on security while completely neglecting liberty is in grave violation of our founding doctrine.
Sen. Rand Paul, Kentucky Republican, is a member of the Senate Foreign Relations and Homeland Security committees.
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