Rand Paul's Righteous NSA Lawsuit

Senator Rand Paul (R-KY) is suing the federal government on behalf of everyone who has a mobile phone. For this, he should be thanked. Paul’s spirited opposition to the National Security Agency’s collection of Americans’ electronic communications, which his lawsuit seeks to curtail, is consistent with the ideals of individual liberty on which America was founded.

Even so, Paul’s lawsuit has been denounced as self-promoting and frivolous by his many detractors. Prominent among these is Andrew C. McCarthy, prosecutor and columnist of note. An accomplished man, worthy of respect, McCarthy is out where the buses don’t run on this particular issue. His defense of government surveillance has been eloquent and wrongheaded, much like his criticism of NSA opponents in general and Paul in particular.

Typical of our over-lawyered age, McCarthy offers a legalistic rejoinder that does violence to common sense. Specifically, he and other proponents of NSA surveillance point to the 1979 Smith v. Maryland case, wherein the Supreme Court ruled that telephone records belong to the phone company, rather than the person using the phone.

Consequently, the NSA’s collection of so-called metadata – records of which phone numbers call each other, for how long, etc. – does not trespass the Constitution’s Fourth Amendment prohibition of unreasonable searches, since these are property of a third party.

McCarthy displays this argument more brazenly than most, waggling the Smith precedent about in the breeze as though the sheer majesty of this court decision from the era of rotary phones completely overwhelms any modern dispute. With exasperation, he laments that he has not yet received an adequate response on this point, daring anyone to disagree with his cocksure reasoning.

Challenge accepted, Counselor.

In particular, McCarthy demands to know how phone records can be considered among the “persons, houses, papers, and effects” protected by the Fourth Amendment, in light of the Smith decision.

Even if one concedes the Smith decision to be so impeccable that it is beyond question, a phone record is nowhere near the same thing today as it was in 1979. McCarthy acknowledges this facet of the Paul suit, only to dismiss the personal, identifying nature of mobile phone use by saying the NSA “generally” does not seek cell-phone records, claiming “strict” rules require their decoupling from location information, and citing a Wall Street Journal report that the NSA collects only 20 percent of call data anyway.

This is at odds with other reports and defiant of common sense. Are we to believe that a massive government surveillance program, capable of electronic omniscience, ostensibly designed to stop terrorism, opts to focus on landlines, as though the next suicide bomber is waiting for orders beside the wall phone in his mum’s kitchen?

Even if that were true (and when have they lied to us before?), and the NSA “generally” eschews cell-phone records, the instances where such records are sought can identify your location, your personal and business contacts, and most or all of your private communications.

Today’s argument, therefore, is rather different from that of 35 years ago, such that while Smith may relate to the Paul suit, it is far from dispositive.

And Smith is, of course, not beyond dispute (or, as McCarthy puts it, “settled”), just as any decision can be revisited and revised. By McCarthy’s logic, for example, would a Supreme Court decision in 1973 mean that the right to partial-birth abortion is “settled”?

Indeed, in considering America’s legacy of liberty from its genesis to today, it is Smith that is the outlier.

That is, from the 1791 ratification of the Fourth Amendment, to the 1979 Smith decision, to the Paul suit of 2014, the first and the third are consistent in their respect for personal privacy, while the second is out of place.

Remember that the Fourth Amendment, as part of the Bill of Rights, represents the supreme law of the land, whereas the 1979 Smith decision is an interpretation thereof. Isn’t it just possible that James Madison had it right, but the Burger Court got it wrong?

That McCarthy will not even countenance this possibility reveals why ostensible conservatives like him (and, frankly, the publication for which he writes) are losing the support of personal sovereignty advocates across America.

Again and again, as the Bill of Rights itemizes negative liberty – things the government may not or must not do – its bias is toward maximizing individual freedom while thwarting the state’s ability to interfere. Whose actions are more consistent with that philosophy – Rand Paul’s or the NSA’s?

McCarthy’s willful blindness to this, preferring to re-state the Smith principle through ever more abstract analogies, evinces the disconnect between the modern legal caste and the plain sense of everyday people.

Moreover, his unblinking faith in the benign strength of the state and America’s security apparatus demonstrates why prosecutors often make poor interpreters of public policy (Chris Christie, please call your office).

Beyond the Smith precedent (which, as demonstrated, is far from the Hulk Hogan leg-drop finishing move he imagines it to be), McCarthy’s secondary arguments become weaker still. In what McCarthy calls a “devastating” admission, the Paul brief notes that the NSA program collects phone numbers, but not the names associated with them.

On what temporal plain do McCarthy and other NSA proponents reside, wherein our policy on phone record proprietorship remains “settled” from a few decades past Pennsylvania 6-500 and the space between getting a phone number and finding out who owns it is like the Great Gulf between the Old Testament Lazarus and the rich man in torment?

Are we to believe that, while the NSA can collect and track every phone number in the country, when it comes to finding out who each number belongs to, they will cluster at an impasse like the marching band at the end of Animal House?

Or do McCarthy et al. insist the NSA will stop short of applying names to collected phone numbers because, well, that’s what the rules say they should do?

In either case, the argument is preposterous, and it is dispiriting to see estimable men like McCarthy, Charles Krauthammer and others advancing it.

Remember, we are speaking of a program which, apart from its antipathy to personal privacy, has been found on a bi-partisan basis never to have thwarted a single terrorist plot.

In McCarthy’s case, it is not even that he favors the letter of the law over its spirit. Rather, he relies upon an outdated interpretation of the letter of the law to justify a willful disregard of its spirit.

Let us start from scratch, asking one simple and honest question: Do you believe the Framers of the Constitution, and particularly the Bill of Rights, would be content with the tracking and storage of the private communications of every American by the federal government?

In launching his lawsuit, Rand Paul is doing two things that are very American: suing, and standing up for freedom. The latter, at least, is worthy of commendation.

Theo Caldwell, an investor and broadcaster, can be contacted at theo@theocaldwell.com

Charles Krauthammer's Defense of the 'Victimless' NSA

In conservative quarters, telling Charles Krauthammer he’s wrong is like giving the Pope a noogie. As a graduate of Harvard Medical School, a board-certified psychiatrist, and a Pulitzer Prize-winning syndicated columnist, Krauthammer is rightly revered as the most brilliant participant in modern political debate.

Unseemly though it may be for a plebian like me to take crayon in hand and write that Krauthammer is mistaken, in his defense of the National Security Agency’s mass surveillance program, he is.

Krauthammer is the most prominent among a number of conservatives who, while advocates of limited government in other spheres, have defended the NSA’s collection of Americans’ phone records and electronic data as essential to national security. A recent tack, which both Krauthammer and Senior Political Analyst Brit Hume have articulated on Fox News Channel, is to state that not a single victim of abuse under this program has been identified.

The spectacle of such respectable public commentators advancing a defense so specious burns the eyes and sears the soul.

By its very nature, the NSA program is secretive, such that citizens cannot know if their communications are being read by government operatives. What we do know is that all phone records and emails are collected, and it is the scope and opacity of the system that offends freedom-minded people.

Perhaps we cannot yet point to someone whose Pier 1 card was cut up before his very eyes because a disgruntled public servant opted to futz with his credit rating (although we know that NSA officers have used their positions to spy on love interests – are those people not victims?), but officials have admitted to “minor” abuses of the database. By and by, we can expect more to emerge.

It has been less than a year since the general public learned of this nefarious undertaking, and new revelations of its scope appear daily. Every step of the way, the government has admitted to as little as possible, while outright lying when it could. As Tony Stark observed of intelligence agencies that fear intelligence: “Historically, not awesome.”

Contemplating President Obama’s recent speech on the NSA, Krauthammer concluded that there would be no practical change to the program, and ended his analysis with, “If I were a lefty, I’d be really upset.” Usually, Krauthammer’s meaning is clear, but I admit to being puzzled by this cast-off remark. Having never been accused of leftism, yet disquieted by the NSA program and the president’s unwillingness to curtail it, does Krauthammer contend that I and millions of Americans who object could only do so as a reflex of modern liberalism?

He may see an inconsistency at work, whereby conservatives who have been hawkish in years past betray their principles by weakening our anti-terror apparatus.

I submit that the greater contradiction, which has more profound implications for the republic, is represented by erstwhile champions of personal sovereignty and individual freedom, like Krauthammer, advocating ubiquitous government surveillance in the name of “security.”

Almost as unsettling as Krauthammer’s departure from good sense is the gentlemanly, previously prudent Hume defending the NSA thusly: “This program threatens no one unless it’s abused.”

Exactly. About how many government programs, or even household objects, could one say the same? The IRS threatens no one, unless it decides to. The police are no danger, unless they opt to be. That waffle iron is no threat, unless you close your hand in it. And so on.

As a matter of pure semantics, perhaps Krauthammer, Hume and others are correct. When you have no privacy or space of your own, when you have no expectation that your personal communications will not be monitored by the authorities, you are less a victim than a slave.

In free societies, governments ought not to have this power. Personal privacy is a codified, self-evident right of citizens, and the burden of proof is upon those who wish to compromise it, not those who seek to maintain it.

In previous, rare instances in which my conclusions have differed from those of Dr. Krauthammer, I have assumed that the mistake was on my side. But brilliance and bad judgment can occupy the same space, and some of the most profound, perspicacious thinkers can be very wrong on big issues (the late Christopher Hitchens’ ardent atheism comes to mind).

A breathtaking resume, impeccable reasoning, and scholarly intonation are no match for common sense. In this case, the mass surveillance of citizens by their government is anathema to a free country, and the brightest among us, Charles Krauthammer included, ought to see that.

Theo Caldwell is an author, investor, and a former Member of the New York Stock Exchange, the Chicago Board Options Exchange, the American Stock Exchange and the Kansas City Board of Trade.  He can be reached at theo@theocaldwell.com

America's Greatest Problem

If this is your first week following the news, you could be forgiven for believing America’s biggest problem is that pylons were placed with extreme prejudice on a New Jersey bridge last September.

The closing of the George Washington Bridge by members of Gov. Chris Christie’s staff, apparently as payback for the denial of an endorsement by the local mayor, has reached the level of national scandal for two reasons: Christie is a formidable presidential contender, and he is a Republican.

Many have pointed out that the media have devoted more time to this regional dust-up involving a potential president than to the weaponization of the IRS by the man who actually is president, Barack Obama.

That’s fair enough. The United States possesses the most oppressive and rapacious tax authority in the world, and siccing it on political foes is unworthy of a leader. But these issues are merely symptomatic of the real problem.

Indeed, both stories – the IRS debacle and bridge imbroglio – have some bearing on what truly ails America. Sages from Aleksandr Solzhenitsyn to Mark Steyn have warned of the peril posed by faceless bureaucrats whom you don’t know, didn’t vote for, and against whom you have no recourse, possessed with tremendous power to screw with your life.

And whether you find yourself in the throes of a thorough audit, or unable to speak your mind or practice your religion for fear of crippling costs and possible imprisonment, or simply stuck in traffic for hours because some politico wanted to teach someone a lesson, you are experiencing a manifestation of America’s greatest problem: the loss of personal freedom.

This is a systemic, cultural crisis, with incidental relevance to particular politicians.

Christie is the wrong man to lead America not because members of his staff engaged in petty revenge tactics, with or without his knowledge. Rather, Christie is poorly cast as Leader of the Free World because he demonstrably does not believe in individual freedom.


Moreover, he announces his antipathy to personal sovereignty with bluster and swagger, as though it were absurd to dispute that ubiquitous security and total surveillance are crucial to our liberty.

Christie is of that breed of benighted Republicans who may not agree with what you say, but will defend to the death the National Security Agency’s right to monitor it. Such politicians, who purport to represent the party of personal freedom and responsibility, really ought to know better.

Likewise, Obama campaigned for the presidency promising to restore civil liberties and undo the national security excesses of his predecessor. Instead, he has exacerbated these issues and taken government intrusion upon private life in bold, new directions.

The loss of personal freedom spans every aspect of modern existence, from doing business, to getting around, to behavior in your own home. If individuals are not free to strive and speak and move about as they wish, what is America, really? A continental land mass with a large consumer market?

How long is that sustainable? Josef Schumpeter called capitalism incomprehensible without an understanding of the role of the entrepreneur. The concept of entrepreneurship is not confined to commerce; it means a person making a different choice, doing things his own way, and bearing responsibility for the outcome. A “free society” in which everything is legislated, regulated and overseen is likewise incomprehensible, and anathema to freedom.

Modern Americans are living off the last sparks of other people’s ideas. If the Bill of Rights were written today, is there any chance it would codify individual liberty through negative licenses (that is, things the government may not do to you)? Or, more likely, would it mandate the wants and entitlements of a soft people who wouldn’t know what to do with freedom if they found it?

Johann Wolfgang von Goethe wrote of this when he gave the Sturm und Drang movement its first novel hero in the person of Young Werther: “Most people spend the greatest part of their time working in order to live, and what little freedom remains so fills them with fear that they seek out any and every means to be rid of it.”

Goethe refined this notion in later years, writing in his oft-quoted Elective Affinities: “None are more hopelessly enslaved than those who falsely believe they are free.”

When I hear Americans bang on about how free they are, I genuinely wonder what their frame of reference might be. That is, do they mean they enjoy greater liberty than, say, Saudi Arabians or North Koreans? Well, super, but was oppression of that type ever on the table?

Compare the United States to other English-speaking, developed nations, and its reflexive boast of “freedom” is exposed as utter rhubarb. For example, Americans are more likely to be imprisoned, dispossessed, or killed by their own government than citizens of most any country it is their tic to disdain.

Many Americans have no clue how other nations do things, yet insist their way is better. Even lacking a frame of reference, free countries’ cops don’t roll through cities like they’re re-taking Fallujah, their tax departments do not pursue citizens around the globe, passengers at their airports are not prodded and probed like super-max inmates, and their governments do not monitor and store all their electronic communications.

The U.S. Department of Education has its own militarized wing. For that matter, so does most every government agency. Having banished the concept of an innocent misunderstanding, and since they have all the jazzy equipment anyway, their default position is to stick a gun in your face, lock you up, and confiscate your property, if not shoot you on the spot.

This column would rather light a candle than curse the darkness. Herewith, therefore, are a half-dozen suggestions to get us off that road to serfdom, and back on the narrow path to freedom:

• Demolish any public policy that begins with “War on.” That means the War on Terror, the War on Drugs, the War on Poverty, the War on What-Have-You. As we have seen with each of these, saying we are at “War” provides a catch-all justification for silly-bears and abuse. The language is both reflective and instructive of a mindset that sees government enforcers as soldiers, in combat with the very people who pay their salaries.
• Abolish the IRS.
• Provide any citizen who is the subject of a government action or complaint with the full names and resumes of the public officials conducting the investigation.
• Punish police who abuse the public more harshly than civilians who commit similar crimes. For example, if a cop uses his badge and uniform as a subterfuge to commit violence upon a citizen, he should be charged not only with the relevant degree of assault, but also with exploiting his public position to do so.
• Return responsibility for airport security to the airlines.
• Cease the government’s collection of private communications except when a warrant has been issued, naming the individual to be monitored and the reason for suspicion.

People often lament a lack of bipartisanship and comity in politics. This is an opportunity to achieve just that. Liberty-minded citizens on the Left and Right have agreed on a number of these issues (the NSA, for example), and the pressing need for a re-birth of freedom surpasses other political differences.

This needs to be the defining issue of our national discourse. As we head into midterm elections this November and choose a new president in 2016, what difference does it make (to borrow a phrase) if corporate tax rates are 35 percent or 25 percent if Americans are not free to pursue happiness in the manner of their choosing, to go confidently in the direction of their dreams?

America has been described as the last, best hope of Earth. If that is true, if it is even close to being true, we owe it to the world, and to the generations who bequeathed us our freedom, to right our course and restore our liberty.

Theo Caldwell is an author, investor, and a former Member of the New York Stock Exchange, the Chicago Board Options Exchange, the American Stock Exchange and the Kansas City Board of Trade.  He can be reached at theo@theocaldwell.com

Of Course NSA Mass Surveillance is Illegal

The recent decision of Federal Judge Richard Leon, that the National Security Agency’s bulk collection of Americans’ communication records does violence to the Constitution, demonstrates a rare convergence of elite jurisprudence and common sense.

While this is by no means the last word on the matter – Judge Leon stayed his own ruling, noting that the debate will likely end up before the Supreme Court – it is encouraging to see prominent legal minds alight upon the self-evident conclusion that mass surveillance of Americans is very wrong.

The propriety of the NSA’s conduct is not a difficult question. What is the meaning of life? Does ensoulment occur at inception? What is the appeal of white chocolate? These are difficult questions.

Should the government of a supposedly free country help itself to the private communications of its citizens? That’s a gimme.

Ah, but they say, we are at war! Always, it seems, we are at war – with drugs, with poverty, with terror, with common sense. (Herewith, I propose America’s next domestic battleground: a War on Bureaucracy). The NSA’s data collection, like the militarization of police or the TSA’s busy hands, supposedly bolsters the noble campaign to keep us safe.

This is rhubarb of the first order. The average American, going about his daily business, has more to fear from power-drunk cops or “Knockout Game” enthusiasts than from al-Qaeda. And increasingly, he has more to fear from his own federal government – the most powerful and omniscient force on the planet – than from all of these combined.

As a moral matter, there is little defense for the NSA’s ubiquitous snooping. At times, the edification of law by morality is clear. It is often noted that murder is not wrong because it is illegal; it is illegal because it is wrong. Nevertheless, there is frequently a chasm between what is legal and what is right.

In such cases as these, there’s always some Harvard Law legerdemain, mystifying to the rest of us rubes, whereby the plain language of the Constitution somehow doesn’t mean what it says and, if only we’d read the Nosey vs. Parker decision, we’d appreciate the applicable precedent.

Nuts to that. America aspires to have a citizen government, not a lawyerly oligarchy. Yet time and again, from the wells of Congress or across the airwaves, self-styled experts defend the indefensible to us, in slow and measured tones, as though they were explaining civics to a small child, or a Golden Retriever.

Any politician, left or right, Republican or Democrat, who offers rationale akin to, “If you have nothing to hide, you have nothing to fear” should be hooted out of public life. Notwithstanding the emotional satisfaction inherent to the defenestration of an adult who pronounces something so dunderheaded, such a politician plainly misunderstands who reports to whom in a representative government. To wit, the onus is not on free citizens to ensure their records are spotless for inspection; it is on the authorities to show why they need to see them, and under what suspicion.

It is reported that German Chancellor Angela Merkel, in a heated exchange with President Obama over the NSA tapping her mobile phone, compared the agency’s tactics to those of the Stasi during the Cold War. Indeed. East Germany, the Soviet Union, Saddam Hussein’s Iraq – these were but a few of the modern states where citizens took it for granted that the government monitored their communications.

America purports to be different, and better. But by what criteria can the country make that claim, as it pertains to the privacy of its people? The high-minded words calligraphed on 18th Century parchment, or the actions of its government today?

Some choose to believe NSA assertions that only so-called metadata are being collected (as in, which numbers call each other, from what locations, etc.), rather than the actual content of phone conversations and emails. What a dark, dreary place the world would be without such sanguine, trusting souls. Careful not to crush their innocence, in light of the mendacity we have seen to date, one wonders whether the simpler explanation is that the NSA, having been exposed, is simply admitting to the least objectionable conduct they can.

If the NSA is only applying serious scrutiny to a couple hundred people, as its Director claims, very well – let them get warrants for each of those folks. Even by the standards of government inefficiency, the idea of gathering the data of over 300 million citizens – or tracking 5 billion phone records a day worldwide – to isolate a crowd slightly larger than a Wheel of Fortune studio audience seems a bit much.

In his decision, Judge Leon noted the NSA cannot point to a single instance in which its Peeping Tom routine has thwarted a terrorist attack. Just so. The NSA’s rejoinder would be that their successes, like their methods, are highly classified and so cannot be marshalled in their defense.

This has been the song of shady bureaucrats for ages – information is exquisitely sensitive, intensely personal, completely private – but if you knew what we know, boy howdy, you’d be right on board with whatever it is we’re doing, though we can’t tell you that, either.

Yale Professor James C. Scott has demonstrated that it is the nature of governments to seek to render citizens “legible.” Inherently, the state is possessed by an urge to monitor, codify, analyze and regulate the behavior of its population.

But when that appetite becomes too rapacious, it is the duty of free-born people to resist.

Theo Caldwell can be reached at  theo@theocaldwell.com