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Jeb Bush is wrong about the NSA's unconstitutional domestic spying program

03/31/2015

There's no indication that the National Security Agency's unconstitutional domestic spying efforts have thwarted an actual terrorist plot inside the United States. In January 2014, the New America Foundation released a report on the 225 individuals investigated for terrorism in which it explained that the so-called "all calls" surveillance program "had no discernible impact on preventing acts of terrorism."

The White House Review Group on Intelligence and Communications Technology, in December 2013, determined that the NSA's domestic spying program "was not essential to preventing attacks." A month later, the Privacy and Civil Liberties Oversight Board (PCLOB) couldn't find "a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation."

The PCLOB, in its report, noted that there's no legal basis for bulk collection of phone records, citing four specific reasons, including that records obtained "have no connection to any specific FBI investigation at the time of their collection" and bulk collection of calls is "an approach lacking foundation in the statute and one that is inconsistent with FISA as a whole."

Rep. Jim Sensenbrenner (R-WI), who introduced the USA PATRIOT Act, has even spoken out against the use of the law to collect the phone records of Americans. "The phone records of innocent Americans do not relate to terrorism, whatsoever; and they are not reasonably likely to lead to information that relates to terrorism," Sensenbrenner told a crowd at the Cato Institute in October 2013. "Put simply, the phone calls we make to our friends, our families, and business associates are private and have nothing to do with terrorism or the government’s efforts to stop it."

"The arguments to the contrary are not compelling," Sensenbrenner explained. "The government claims it needs the haystack to find a needle. But gathering the haystack -- and making it larger -- without knowledge that it contains the needle is precisely what the relevant standard was supposed to prevent."

But Jeb Bush lives in a different world, one in which the federal government isn't bound by its constitutional limitations nor respects the Bill of Rights. During an interview on The Hugh Hewitt Show, the former Florida governor defended the NSA. "I’ve always been nervous about the attacks on the NSA, and somehow that we’re losing our freedoms by keeping the homeland safe," said Bush. "I think we need to be really vigilant about that.”

"I think the President has to lead, has to explain to people. He’s actually enhanced the intelligence capabilities, in many ways, because technology has gotten better. But he never defends it. He never explains it. He never tries to persuade people that their civil liberties are being protected by the systems we have in place," he added. "If people knew that, I don’t think there’d be any doubt that they would want to have the ability to identify people from the outside that may be trying to coordinate with some people in the inside."

This is isn't the first time that Bush has spoken out in support of the NSA's domestic spying program. In February, Bush, speaking at a luncheon in Chicago, told a crowd, "For the life of me I don't understand, the debate has gotten off track." He also repeated claim that civil liberties are being protected. "[T]his," he said, contrary to the facts, "is a hugely important program to use these technologies to keep us safe."

Though he has called for reforms, President Obama did initially defend the NSA's spying program, which, just last month, was renewed by the rubber stamp Foreign Intelligence Surveillance Court. The problem, of course, is that he has no real credibility with the American people. After all, on multiple occasions, he promised Americans that if they liked their health plan, they could keep it. Not long after, millions of Americans lost their health insurance coverage. That now infamous line was PolitiFact's 2013 "Lie of the Year."

The entire basis of the NSA's domestic spying program is fundamentally inconsistent with the protections in the Fourth Amendment, rendering Bush's point moot. The Fourth Amendment protects Americans "against unreasonable searches and seizures," so a program that collects the phone records of Americans not under investigation for terrorist activity undermines this crucial civil liberty. Calls made to parents, kids, grandparents, friends, and so on shouldn't be of any interest to the federal government.

The only way someone, like Bush and the NSA's apologists in Congress, can make an argument to the contrary would be to say that every American is a terrorist suspect and that every single call made in the United States is, somehow, connected to an investigation. Such a claim would be truly absurd, but that is, ostensibly, what Bush is saying in his repeatedly poor attempts to defend the indefensible.