Politics & Policy

Rand Paul’s Faux-Libertarian Opposition to the Patriot Act

(Chip Somodevilla/Getty)

At Powerline this week, Steve Hayward penned a post aptly entitled “The Insincerity of Rand Paul.” The senator’s legal arguments against the Patriot Act, he posits, mimic papa Ron Paul’s 2003 calls for a formal declaration of war against Iraq: mere “constitutional punctilio to cover his real feelings.”

Steve is right. Congress statutorily authorized the use of military force in Iraq. Nothing more was constitutionally required. The real reason for Representative Ron Paul’s formalistic nattering about a declaration of war was his opposition to American intervention in Iraq. That, in turn, was driven by his theory that it was American national defense policies that cause anti-U.S. animus.

Senator Rand Paul’s overwrought constitutional claims against the Patriot Act similarly camouflage his real objection: He is anti-government even with respect to national security, one of the few things for which we actually need the federal government.

I use the term “anti-government” advisedly. Paul is generously portrayed as a libertarian. In an age of unprecedented government intrusion into (formerly) private life, Paul has made inroads with conservatives because we believe in limited government. Yet, while conservatives are wary in any context of government’s corruptive propensities, we are not anti-government.

EDITORIAL: Republicans Shouldn’t Have Surrendered on the Patriot Act

We want government that is big enough to do the things for which we need it, we want it to do those things well, and we are not ashamed to admire it when it does so. Government is a necessary evil — with an emphasis on necessary. Ronald Reagan is fondly remembered for how he used government’s appropriate national security powers to wither the Soviet Union. We wish he had had more success in stripping government down to its proper role, but what we most admire is Reagan’s orchestration of government’s proper role.

Senator Paul is not so much a proponent of limited government as an opponent of government, period.

Senator Paul, to the contrary, is not so much a proponent of limited government as an opponent of government, period. Conservatives are libertarian when it comes to protecting our liberties against overbearing government’s encroachments. We recognize, however, that our liberties cannot survive without national security and the rule of law. Paul and other anti-government activists who style themselves as libertarians fight national security and the rule of law at every turn — assuring us they know these virtues have their place, but eroding that place whenever the opportunity arises.

Paul’s campaign against the Patriot Act is not about fidelity to the Constitution. His ill-informed banter about “general warrants” and the like is geared to impede the legitimate exercise of constitutional authority. Nor is this approach limited to government’s national-defense powers. Paul also objects to the exercise of routine, commonsense law-enforcement powers, even under strict judicial supervision.

RELATED: Why National-Security Republicans Lost the Patriot Act Debate

Among the most disingenuous arguments the senator lodged against the Patriot Act involved so-called sneak-and-peek search warrants.

As is the case with a traditional search warrant, a sneak-and-peek warrant permits the search of a home, a business, or other premises only if investigators first persuade a federal judge that there is probable cause that a crime has been or is being committed. In many ways, these clandestine searches are less intrusive than traditional ones, because the agents avoid seizing the suspect’s property. Instead, they are limited to looking around and taking video and photographs of items the warrant specifies. Having gleaned critical information without tipping their hand that an investigation is underway, the agents can then continue following leads, identifying conspirators, gathering evidence, and building a more solid case for eventual arrests and prosecution.

During his diatribes last week against the Patriot Act’s Section 215, the business-records provision that is (or was) the government’s asserted authority for the NSA’s metadata program, Paul diverted to take a swipe at Section 213, the sneak-and-peek statute:

Here’s one of the problems, one of the big problems I have with the Patriot Act. We now use parts of the Patriot Act to arrest people for domestic crime. Section 213 “sneak-and-peek,” where the government can come into your house, place listening devices and never announce that they were ever in your house, and then leave, and then monitor your behavior and never let you know they’ve been there, is being used 99.5 percent of the time for domestic crime.

This is so mendacious it is hard to know where to begin.

Let’s start with Paul’s main thrust: viz., purported Patriot Act creep. The senator wants Americans to believe that the legislation started out as a menu of national-defense authorities strictly for use against terrorists, but that it has inevitably spread its tentacles into everyday law enforcement. The implication is obvious: Sure, government officials say they are only collecting metadata and conducting surveillance to protect us from foreign terrorists, but it turns out they are using these extraordinarily broad spying powers to prosecute ordinary Americans for minor offenses that have nothing to do with terrorism.

RELATED: Rand Paul’s NSA Metadata Concerns Are Misplaced

Dr. Paul was not yet a U.S. senator when Patriot was enacted in October 2001, nor when it was reauthorized in March 2006 — a reauthorization that made the sneak-and-peek procedure permanent. He was, however, active in the anti-government movement led by his father, a blistering Patriotic Act critic. Senator Paul, moreover, is now a presidential candidate who has made opposition to the Patriot Act the centerpiece of his campaign. He is thus intimately enough familiar with the Patriot Act that he must know his remarks on the Senate floor were grossly misleading — and, in part, outright false.

When the Patriot Act was reauthorized in 2006, it was understood, by advocates and opponents alike, that Section 213’s codification of sneak-and peek warrants was intended to apply to domestic law enforcement. The legislation and debate over it were explicit on this point. Today’s use of Patriot’s sneak-and-peek procedure in non-national-security cases is not an unintended, insidious consequence. It is exactly what the law was designed to accomplish.

RELATED: Jeff Sessions: Why Should Terrorists Be Harder to Investigate than Routine Criminals?

Prior to 2001, the only statutory authority for sneak-and-peek search warrants was in the narrow realm of national-security law. A Clinton-era amendment to FISA (the Foreign Intelligence Surveillance Act of 1978) empowered judges to authorize secret searches of “agents of foreign powers” — meaning, for the most part, spies and operatives of foreign terrorist organizations.

Nevertheless, sneak-and-peek warrants had for decades been routinely issued in ordinary criminal cases by judges across the United States. Though no congressional enactment specifically addressed the matter, the courts inferred authority for clandestine searches from the Fourth Amendment and statutes governing traditional search warrants. This was not very controversial: As already noted, traditional search warrants enable agents to seize copious amounts of a suspect’s property, so a mere search in which agents do no seizing is a fortiori permissible.

#related#Because the authorization of sneak-and-peek warrants was thus the result of judge-made law rather than statute, different jurisdictions had different procedures. This brings us to one of Paul’s most egregious representations: the claim that agents who carry out the secret searches “never announce that they were ever in your house, and then leave, and then monitor your behavior and never let you know they’ve been there.” Not true. Just like traditional search warrants, sneak-and-peek warrants have always required agents to provide notice that premises have been searched. The novelty with sneak-and-peek was that the notice is delayed, not denied. But prior to the enactment of Patriot Section 213, the period of delay sanctioned by judges varied from federal circuit to federal circuit.

Consequently, Congress’s purpose in enacting Section 213 was simply to prescribe a uniform procedure for sneak-and-peek warrants in all federal courts across the nation. Courts may now initially delay notice for 30 days after the warrant’s execution; thereafter, the government may seek extensions, which should be less than 90 days but may be more if the judge finds further delay is justified. The salient point, however, is that notice is required and may only be delayed by court authorization. The Justice Department may not delay notice on a whim; it must convince a judge that there are real reasons to believe that, absent delay, an ongoing investigation could be jeopardized, evidence destroyed, lives endangered, or witnesses intimidated.

Senator Paul also asserted that the Patriot Act’s sneak-and-peek provision enables agents to “place listening devices” in our homes — again, without ever telling us about them. This, too, is outrageously false. Patriot Section 213 merely amends the statutory procedure for issuing search warrants in order to allow delayed notice (see Section 3103a of Title 18, U.S. Code). It has nothing to do with planting eavesdropping devices.

RELATED: NSA Data Collection: Necessary, or Unconstitutional?

As Paul must know, “bugs” for intercepting conversations have been a staple of organized crime and narcotics investigations for generations. They were explicitly authorized by Congress almost half a century ago — in 1968. Our country had not yet been subjected to jihadist mass-murder back then, but the Rand Pauls of the time protested, just as the senator does today, that Congress was unleashing federal agents to break into a person’s home without notice.

In 1979, the Supreme Court in Dalia v. United States described that argument as “frivolous.” It was “well established,” the justices explained, “that law officers constitutionally may break and enter to execute a search warrant where such entry is the only means by which the warrant effectively may be executed.” Thus, “officers need not announce their purpose before conducting an otherwise duly authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence.” The Court added that whether the issue was surreptitious entry to plant the bug or the subsequent eavesdropping, the Constitution required only that “once the surveillance operation is completed[,] the authorizing judge must cause notice to be served on those subjected to surveillance.”

The frivolous argument has not gotten better with age. But Senator Paul’s contentions are not merely frivolous. They are disingenuous. He is misleading the public for the specific purpose of eviscerating commonsense law enforcement as well as commonsense national security. That is unseemly in a public official. It is disqualifying in a candidate for the office most responsible for enforcing our laws and securing our nation.

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.

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