Commentary Magazine


Topic: Patriot Act

Rand’s Sad Tale of Two Filibusters

It’s hard to recapture the magic the second time around. As Senator Rand Paul is realizing this week, that’s cliché applies as much to politics as it does for romance. As James Kirchick explains in a major piece for the magazine called “The Dangerous Unseriousness of Rand Paul,” a 2013 filibuster about drone policy transformed the Kentucky libertarian from cranky extremist Ron Paul’s son to a serious contender for the 2016 Republican presidential nomination. But with his candidacy failing to get much of a boost from his formal announcement and finding himself stuck in the middle of the pack in the large GOP field, Paul tried the filibuster trick again. It was, just like the first one, an impressive performance. But it’s unlikely to have the same effect. In 2013, even Republicans like Marco Rubio who basically disagreed with him on the policy question felt compelled to offer him some support. This time his biggest cheerleader was the editorial page of the New York Times. That not only demonstrated Paul’s basic affinity with the left on foreign policy but also showed that his moment had passed. Where his first filibuster showed he had transcended his father’s base, this one illustrated the fact that he has been forced to fall back on it in order to revive his flagging candidacy.

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It’s hard to recapture the magic the second time around. As Senator Rand Paul is realizing this week, that’s cliché applies as much to politics as it does for romance. As James Kirchick explains in a major piece for the magazine called “The Dangerous Unseriousness of Rand Paul,” a 2013 filibuster about drone policy transformed the Kentucky libertarian from cranky extremist Ron Paul’s son to a serious contender for the 2016 Republican presidential nomination. But with his candidacy failing to get much of a boost from his formal announcement and finding himself stuck in the middle of the pack in the large GOP field, Paul tried the filibuster trick again. It was, just like the first one, an impressive performance. But it’s unlikely to have the same effect. In 2013, even Republicans like Marco Rubio who basically disagreed with him on the policy question felt compelled to offer him some support. This time his biggest cheerleader was the editorial page of the New York Times. That not only demonstrated Paul’s basic affinity with the left on foreign policy but also showed that his moment had passed. Where his first filibuster showed he had transcended his father’s base, this one illustrated the fact that he has been forced to fall back on it in order to revive his flagging candidacy.

Let’s give due credit to Paul for a bravura performance on the floor of the Senate as he sought to rally opposition to renewal of the Patriot Act. Just as he was in his first filibuster, he was articulate, passionate and principled. So why can’t it rally conservatives to his side the same way they did before?

The first and most obvious reason is that this is a different moment in time. In 2013, even many on the right though President Obama was right when he spoke of al-Qaeda and Islamist terror as having been licked. Today, Americans know that not only are the Islamists as dangerous as ever, but ISIS now controls much of Iraq and Syria and is expanding elsewhere. The idea that the terror threat is overstated or doesn’t require the country to empower its security apparatus some leeway for spying doesn’t have the same appeal today as it did two years ago.

It is true that many on the right are cynical about government, and it’s hard to disagree with Paul when he says that if you give it power, abuse is sure to follow. That’s an argument that is easy to make with a president who is prepared to act outside the law on so many issues as Barack Obama has done. But if you’re seeking the nomination of a party whose core foreign policy beliefs are rooted in intense Ronald Reagan-style patriotism and belief in a strong defense, ranting against the National Security Agency isn’t necessarily the formula for success. That is especially true at a time when the terrorists they are tasked with fighting are burning and beheading people and taking over countries.

This is not just because his attacks on the NSA and the Patriot Act are wrongheaded. The NSA has not acted improperly nor is the Act unconstitutional. But it goes deeper than that.

Rand’s problem is that the libertarian surge of 2013 has ebbed. That’s not because conservatives no longer care about personal liberty or think the government can always be trusted. But it hasn’t been lost on most Republicans that his stands on foreign policy are much closer to those of Bernie Sanders and the left wing of the Democratic Party than they are to those of the rest of his party. Like the left, his basic instincts are to suspect American power rather than to think of it as a force for good. Like the left, he believes the U.S. should shy away from confronting forces of evil rather than standing up to them.

Yet the most discouraging thing about the filibuster for Paul’s supporters is that it showed that he has failed to meet the basic assumption that most of us had about him two years ago. Back then, even those of us who were critical about him assumed that he was about to break through to mainstream support and expand beyond the libertarian base he inherited from his father. But as the polls show, it hasn’t happened. Indeed, given the stiff competition for Tea Party and even libertarian-oriented voters, he can’t even count on doing as well as Ron Paul did in 2012. Just as ominous for his chances is the fact that many of those Paulbots are unhappy with Rand’s attempt to shift to the center away from hardcore libertarian positions on foreign policy issues as he maneuvered for the presidential race. The filibuster was an attempt to rally that base.

That may well work, and if it does it might give him a fighting chance in a crowded field where none of the contenders can claim to have more than a fraction of the GOP electorate. But even if it does, it still leaves him far short of the support he needs to ultimately win the nomination. Rather than recapturing the magic, the filibuster confirmed it is gone. If he were really on track to be a potential nominee he would have transcended stunts like filibusters. All it proved was that Paul is still only a factional leader rather than someone with the potential to unite his party, let alone lead it to victory against the Democrats.

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Rand Paul’s Worst Case Against the PATRIOT Act: It’s Unpopular,So Gut It

On Wednesday, Sen. Rand Paul took the floor of the U.S. Senate to reprise his marathon speech in opposition to the metadata collection and warehousing programs that were exposed as part of the PATRIOT Act in 2013. Those programs were revealed in documents leaked by NSA defector and current beneficiary of Russian hospitality, Edward Snowden. While speaking in opposition to those programs, Paul made the claim that the American public is with him. But are they? The data suggests that it might not be true that the nation is standing with Rand as they were two years ago.

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On Wednesday, Sen. Rand Paul took the floor of the U.S. Senate to reprise his marathon speech in opposition to the metadata collection and warehousing programs that were exposed as part of the PATRIOT Act in 2013. Those programs were revealed in documents leaked by NSA defector and current beneficiary of Russian hospitality, Edward Snowden. While speaking in opposition to those programs, Paul made the claim that the American public is with him. But are they? The data suggests that it might not be true that the nation is standing with Rand as they were two years ago.

Paul’s arguments against these programs then, as they are now, are not entirely without merit, but a debate over on the virtue of the various information netting and retention programs contained within that post-9/11 counterterrorism bill is beyond the scope of this post. Certainly, Paul’s contention that these programs deserve public scrutiny is not unwarranted. They have been subject to precisely the scrutiny Paul recommends for nearly 24 months. Moreover, Paul would not have had the opportunity to mount a pseudo-filibuster in opposition to these programs today if a federal court had not determined that the PATRIOT Act’s information gathering programs must be approved individually and not, as Sen. Mitch McConnell had liked, as a blanket reauthorization of that sprawling counterterrorism law.

None of this is to say that Paul’s arguments against the National Security Agency’s sweeping data collection powers are baseless. He made a rather compelling argument, in fact, when he contended that the use of information obtained via NSA surveillance programs that was used during the prosecution of a criminal case (albeit against a terror suspect) exceeds the bounds of the powers granted to the government by the PATRIOT Act.

But for all of Paul’s compelling arguments, he also made more than a few unconvincing claims designed to poison the public against the NSA’s programs. Perhaps the most risible contention Paul made in opposition to the NSA’s information gathering programs is that they should be repealed because they are simply unpopular.

“I think if you look at this and you say, ‘Where are the American people on this?’” Paul asked. “Well over half the people, maybe even 60 percent of the people, think the government has gone too far.”

“But if you want an example of why the Senate or Congress doesn’t represent the people very well, or why we’re maybe a decade behind, I’ll bet you it’s 20 percent of the people here would vote to stop this. To truly just stop it,” the senator contended. “At the most.”

“Whereas it’s 60, 70 percent of the public would stop these things,” Paul continued, citing an ever-increasing majority of the public that is supposedly opposed to the NSA’s programs.

“You’re not well-represented,” he added. “I think the Congress is maybe a decade behind the people. I think it’s an argument for why we should limit terms. I think it’s an argument for why we should have more turnover in office, because we get up here and we stay too long and we get separated from the people.”

Yes, senator, lawmakers in Congress who are ostensibly privy to classified intelligence briefings are on average more protective of the NSA’s surveillance programs than the general public. That is not a mark against these programs, and certainly no argument in favor of term limits; it’s an argument in their favor.

As for Paul’s claim that somewhere between 50 and 70 percent of the public would do away with the NSA’s surveillance programs if they had the chance, it’s hard to find recent data that supports this assertion that does not result from surveys commissioned by the ACLU. A recent Pew Research Center poll paints a far more complex picture of how the public views the NSA’s programs in a world that is now characterized by a resurgent radical Islamist threat and is routinely imperiled by self-radicalized, ISIS-inspired lone wolves.

While 61 percent of those polled in a survey released in March say they are “less confident the surveillance efforts are serving the public interest,” it’s far from clear that this majority of respondents would do away with the NSA’s programs entirely. 82 percent of those polled are comfortable with the government monitoring the communications of suspected terrorists. Another 60 percent are unperturbed by the prospect of monitoring the communications of elected U.S. officials and foreign leaders. A narrow majority, 54 percent, say that they are not uncomfortable with federal officials monitoring the communications of non-U.S. citizens.

“Yet, 57% say it is unacceptable for the government to monitor the communications of U.S. citizens,” Pew’s release read. “At the same time, majorities support monitoring of those particular individuals who use words like ‘explosives’ and ‘automatic weapons’ in their search engine queries (65% say that) and those who visit anti-American websites (67% say that).”

The issue of NSA surveillance is nowhere near as black and white as it was when the Snowden leaks were initially revealed. There are some good arguments in support of Paul’s position on NSA surveillance. Those that the senator made at the open of his latest marathon floor speech on the matter are not among them.

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NSA Data Collection Is Legal–and Smart

Given the IRS and Benghazi scandals, there is a natural tendency on the part of many Americans, conservatives especially, to be outraged at news disclosed by the Guardian that the government is able to collect records on large numbers of phone calls. This is a tendency best resisted.

The news that has come out today makes clear that this is a perfectly legal, if secret, undertaking which has been authorized by the Patriot Act, briefed to Congress, and undertaken via judicial order. This does not allow the government to listen in to communications indiscriminately but, apparently, to do data mining to look for suspicious patterns.

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Given the IRS and Benghazi scandals, there is a natural tendency on the part of many Americans, conservatives especially, to be outraged at news disclosed by the Guardian that the government is able to collect records on large numbers of phone calls. This is a tendency best resisted.

The news that has come out today makes clear that this is a perfectly legal, if secret, undertaking which has been authorized by the Patriot Act, briefed to Congress, and undertaken via judicial order. This does not allow the government to listen in to communications indiscriminately but, apparently, to do data mining to look for suspicious patterns.

That is precisely what the government should be doing to keep us safe from terrorism–which, as recent attacks in Boston and London show, remains a potent threat notwithstanding the demise of Osama bin Laden. The Obama administration should be praised for continuing this Bush-era initiative rather than pilloried for Big Brother tactics. The only outrage here is that the Guardian has disclosed such a highly classified program.

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