Paul argues that "If the President and Congress would obey the Fourth Amendment we all swore to uphold, this new shocking revelation that the government is now spying on citizens' phone data en masse would never have happened."
The key there is the reference to Congress. The inconvenient truth is that presidents, be they Republicans or Democrats, tend to claim the constitutional space that is afforded them by the House and Senate.
That's no excuse for the actions of George Bush or Barack Obama. But it is a fact that Congress has done a lousy job of checking and balancing successive administrations who it comes to privacy concerns.
In May, 2011, a complicated set of votes were held on extension of the Patriot Act. Amendments that would have protected privacy rights were defeated and the final vote saw just 23 senators -- 18 Democrats including Merkley, independent Sanders and four Republicans including Paul -- vote "no."
That's way better than the one "no" vote Feingold cast in 2001.
But it is way short of what is needed to defend privacy rights.
With the latest revelation, Congress has an opportunity to do what Feingold begged the House and especially the Senate to do from 2001 on: provide meaningful oversight and real checks and balances on surveillance initiatives that are clearly at odds with a Fourth Amendment protection that says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."
Feingold warned us five years ago that Congress, through its inaction and its explicit authorizations of unchecked surveillance in the Patriot Act and rewrites of Foreign Intelligence Surveillance Act, ushered in "one of the greatest intrusions, potentially, on the rights of Americans protected under the Fourth Amendment of the US Constitution in the history of our country."
Ideally, the pair of former senators who once expressed deep concerns about abuses of privacy rights and now serve as president and vice president would take the lead in addressing abuses.
But it is an understanding that the executive branch rarely surrenders authority that had been ceded to it that led the founders to separate the powers of the federal government. They wanted to assure that, when the executive branch did not act properly, the legislative branch could step up.
It is time for Congress to recognize that Feingold was right in his warning. The potential for for intrusions on the rights of Americans protected under the Fourth Amendment has been realized.
And it must be addressed by a Congress that understands and embraces its role as a defender of the Constitution to which every member swears an oath.
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