The Spectacle Blog

In Reply to Aaron re: Ambulance Chasing

By on 2.13.14 | 3:00PM

Amid his latest battery of blog posts, Aaron struck a familiar chord and took another shot at the junior senator from Kentucky. I have to give him credit—he beat Jen Rubin to the punch (although Charles Pierce slugs it out with more panache).

Having already declared Senator Paul a demagogue, compared him to Vladimir Putin, and hinted he’s an al Qaeda apologist who pals around with 9/11 truthers, Aaron now tones down the hysterics. In this case, Paul's simply an “ambulance chaser” who’s prone to “political theater.” Aaron summons his considerable legal prowess to dismiss the largest class action suit ever filed in support of the Bill of Rights as “wholly without merit.” According to AmSpec’s resident constitutionalist, it’s impossible to demonstrate that the NSA has threatened anyone’s privacy. Presumably, we can trust in their good faith surveillance of our phone calls and emails.

In my humble opinion, Aaron’s legal insight does a disservice to ambulance-chasing, personal injury attorneys everywhere.

Full disclosure—I’m employed by FreedomWorks, and my boss, Matt Kibbe, was invited to join Paul and Ken Cuccinelli in filing this historic suit. On the bright side, that gives me a pretty good grasp of the situation.

As Mr. Cuccinelli explained at yesterday’s press conference, the object of this class action is to prevent further collection of telephone data, while removing existing records from the NSA’s bottomless silos.

These requests hinge on the court deciding whether the mass collection of metadata on our phone calls (under the infamous section 215 of the Patriot Act, and referred to as “Mass Associational Tracking Program,” or MAPT) violates our First and Fourth Amendment protections. Last I checked, our free speech and expectation of privacy are rights worth fighting for—particularly having learned that our government erected an infinite surveillance architecture behind our backs.

Other organizations—notably, the ACLU—have attempted to challenge the NSA before. They’ve had limited success (more on that later). We reckon that the tide is turning. Americans are better aware of federal overreach into our privacy and property. This suit already represents more than 386,000 people whose information has been collected and stored by the government. This massive grievance may prompt a freer, fairer hearing.

Of course, Aaron’s not buying it. But here’s something he should keep in mind as this class action suit gains traction.

In 2007, the ACLU sued the NSA over the constitutionality of the so-called “Terrorist Surveillance Program” (TSP). ACLU v. NSA was the first of several lawsuits to challenge the TSP—it hinted at the depths of federal wiretapping, and extrajudicial relationships between the NSA and various cellular carriers. It began at the district court level—precisely where we filed suit yesterday.

At the time, the district court judge, Anna Taylor, issued a 44-page ruling, which found that the NSA’s TSP violated statutory law in regard to the FISA. Her remarks were profound:

The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well. [Emphasis mine—RS]

Taylor’s ruling was subsequently overturned by the U.S. Court of Appeals for the 6th Circuit in a 2-1 ruling. However, this was the first ruling on the legal and constitutional issues relating to the NSA’s warrantless surveillance program. It was handed down in favor of our First and Fourth Amendment rights. The political atmosphere has changed drastically since 2006. It’s a great deal more promising for liberty-oriented legal reckoning. 

At the time, Republicans objected to Judge Taylor’s “partisan” agenda. She had worked in the civil rights movement and was appointed to the bench by President Carter. Her conservative critics dismissed the ruling as little more than a “poke in the president’s eye.”

Say what you will about her record on the bench. It goes to show how far past “partisan” we’ve come, when we can all agree with Taylor that:  

It was never the intent of the framers to give the president such unfettered control, particularly when his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights […] The three separate branches of government were developed as a check and balance for one another.

In this day and age, how could anyone object to that logic? Regardless of Aaron’s chronic distaste for Rand Paul, this NSA class action suit isn’t street theater. It’s real. It’s happening. And the court may rule in favor of the American people. 

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