Politics & Policy

Heritage Breaks with Rand on NSA

(Jason Winter/Dreamstime)

National Security Agency officials should continue to have the power to review phone-data records in pursuit of terrorists, albeit in a reformed manner, according to a rare Heritage Foundation report on the NSA released on the heels of Senator Rand Paul’s ten-hour denunciation of such practices.

“The U.S. is facing the most concentrated period of terrorist activity in the homeland since 9/11,” the report says, referring to the rise of ISIS and the recent shooting in Garland, Texas. “Given the increasing nature of the threat and the unique nature of this enemy, it would be unwise to completely abandon the use of telephone metadata in helping to disrupt future terrorist plots and/or gain intelligence about known or suspected foreign terrorists.”

EDITORIAL: Save the Patriot Act, Don’t Neuter It

The authors — James Jay Carafano, Charles D. Stimson, Steven P. Bucci, John G. Malcolm, and Paul Rosenzweig — sketch three “viable options” for how Congress might permit the continuation of the NSA program, chief among them the bill known as the USA FREEDOM Act.

Under that proposal, “the metadata resides with the telephone carriers, where the government will have access to it subject to a court order,” the authors explain, before conceding that the legislation is “not perfect” and recommending improvements.

Nevertheless, “the USA FREEDOM Act strikes a balance between maintaining our national security capabilities and protecting privacy and civil liberties, and this should always be the goal,” they conclude.

The Heritage report breaks with Rand Paul, who believes that the bill might rescue the Patriot Act programs he wants to abolish from being found unconstitutional by the Supreme Court.

With such praise for the bill, the Heritage report breaks with Rand Paul, who believes that the bill might rescue the Patriot Act programs he wants to abolish from being found unconstitutional by the Supreme Court.

“The court has now ruled that the Patriot Act is not sanctioned or [does not] give approval to the bulk collection of records,” Paul said in Philadelphia on Monday. “My fear is that the USA FREEDOM Act, even in transferring that power from the government to phone companies, actually expands the power of government.”

The Heritage report suggests otherwise. “As Americans, we cherish our constitutional rights, including our right to privacy,” it says. “Numerous court decisions have held that data, in the hands of third-party providers, are not protected by the Fourth Amendment of the Constitution. In fact, no court has held that the bulk telephone metadata program violates the Fourth Amendment or any other provision of the Constitution.”

#related#Paul won his Senate seat in 2010 with the help of then-Senator Jim DeMint (R., S.C.), who is now president of the Heritage Foundation. Two other Heritage allies, Senators Mike Lee (R., Utah) and Ted Cruz (R., Texas), support the USA FREEDOM Act.

Lee is pressing Senate Majority Leader Mitch McConnell (R., Ky.) to allow a “fair debate” on the legislation to take place.

“This is not [the] time for more cliffs, for more secrecy, and more eleventh-hour back room deals,” Lee said on the Senate floor during Paul’s filibuster. “It’s time for the kind of bipartisan, bicameral consensus that I believe is embodied in the USA FREEDOM Act.”

— Joel Gehrke is a political reporter for National Review.

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