NSA spying illegal, even under the unconstitutional Patriot Act

The Fourth Amendment requires probable cause before seizing data, not a Photo: AP

TAMPA, August 5, 2013 – Last week, Rep. Justin Amash, R-Mich., introduced an amendment to the Defense Appropriations Bill that would have limited the NSA’s blanket collection of metadata to those “relevant to a national security investigation.” 

Amash’s amendment did not attempt to enforce the standard set in the Fourth Amendment, which requires “probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” That the data to be collected are relevant to an ongoing national security investigation doesn’t mean that there is probable cause that the person whose records are collected has committed a crime.

That means that the Patriot Act is unconstitutional, according to any reasonable interpretation of the Fourth Amendment.

The NSA’s activities do not even meet the lower standards set by the Patriot Act; they are illegal even under an unconstitutional law.

It is important to remember the difference between “constitutional” and “legal.” Legal means that the activity in question complies with existing law passed by a legislative body. Constitutional means that the legislative body had been given the power to pass the law in the first place.

The U.S. Congress not only wasn’t given the power to past the Patriot Act, it was strictly prohibited from doing so by the Fourth Amendment. Congress passed the legislation anyway. The NSA didn’t even bother to comply with that.

Not only was Amash’s amendment defeated, but its sponsors were met with a backlash of scorn and ridicule from Governor Chris Christie and other defenders of the national security apparatus, citing the need to protect Americans from terrorism, regardless of the legal and constitutional issues.

If legislators can pass laws exercising powers never consented to by the people, then what does the word “constitutional” really mean?

If government agencies can ignore legislation written specifically to govern their actions, where is the rule of law?


Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.


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Thomas Mullen

Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America. He writes weekly columns on his blog and has been featured on The Daily Caller, The Huffington Post, Daily Paul, LewRockwell.com, 321 Gold! and Peter Schiff’s EuroPac.net. Tom has been a guest on Fox’s Freedom Watch with Judge Andrew Napolitano, Adam Vs. the Man, Free Talk Live, and numerous other programs.

Tom is originally a native of Buffalo, NY and graduate of Canisius College. He earned a Master’s Degree in English from State University of New York College at Buffalo. He now resides with his family in Tampa, FL.

Contact Thomas Mullen


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