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Thursday, December 17, 2020

Tulsi Gabbard and Thomas Massie Take a Stand for the Fourth Amendment

Sweeping surveillance laws have remained on the books for decades after 9/11—but two members of Congress from opposite sides of the political spectrum want to change that.

Image Credit: Gage Gage Skidmore - CC BY-SA 2.0

The Patriot Act was passed in 2001 in the wake of the tragic 9/11 terrorist attacks. 

In the name of combatting terrorism, the sweeping law vastly expanded the federal government’s surveillance powers and ability to spy on Americans. In the nearly two decades since, the National Security Agency’s mass warrantless surveillance of American citizens was exposed by whistleblower Edward Snowden, a key government spying program was declared illegal by a federal court, and only a minuscule percentage of federal spying has been tied to terrorism.

Nevertheless, much of the Patriot Act has remained on the books and in use for decades. Two members of Congress from opposite sides of the political spectrum want to change that.

Hawaii Rep. Tulsi Gabbard, a progressive Democrat, has just introduced a bill alongside libertarian-leaning Republican Rep. Thomas Massie of Kentucky to repeal the Patriot Act, revoke much of the FISA Amendments Act, and restore Americans’ privacy protections. Their legislation would do the following (and more):

  • End mass telephone and email data collection with narrow exceptions
  • Protect federal national security whistleblowers like Edward Snowden
  • Ensure that FISA surveillance of Americans can only occur with a warrant based on probable cause
  • Require the Government Accountability Office to monitor federal intelligence agencies for compliance 

The case for this legislation is rooted in privacy rights and the need to restore Fourth Amendment stipulations that protect Americans from being spied on by their government. 

“The Constitution of the United States guarantees fundamental rights and freedoms for every American—including the right to privacy and protection against illegal search and seizure without probable cause,” Gabbard said. “Unfortunately, the so-called Patriot Act and FISA Amendments Act allowed the intelligence community to conduct mass surveillance on Americans, collecting information about our phone calls and our emails.”

“The Patriot Act contains many provisions that violate the Fourth Amendment and have led to a dramatic expansion of our domestic surveillance state,” Massie added. “Our Founding Fathers fought and died to stop the kind of warrantless spying and searches that the Patriot Act and the FISA Amendments Act authorize. It is long past time to repeal the Patriot Act and reassert the constitutional rights of all Americans.”

As Massie indicates, this legislation is long overdue. Fortunately, it may find some allies in the Senate, given that figures such as Sen. Rand Paul have similarly opposed the Patriot Act and other Fourth Amendment intrusions. However, the legislation is likely to meet strong opposition from members of both parties’ establishments, so the chances of it becoming law in the immediate future are, it’s fair to say, quite slim.


The biggest reason is that expansions of government power are inherently difficult to roll back. In times of emergency, citizens acquiesce to sweeping expansions of state power they would never accept in normal times. But even after the emergency has passed, the government retains much of this power, because removing it would require government officials to vote to decrease their own power—something most politicians are unlikely to do. 

Thus, government power increases over time as it spikes during crises but never fully recedes. This cycle is what economist Robert Higgs dubbed the “ratchet effect.” And it’s a lesson Americans should keep in mind during the COVID-19 pandemic.

Whether Gabbard and Massie’s bill is successful or not, it offers an important reminder. If Americans accept extreme intrusions of government power during times of crisis, those invasions of our liberty may well remain on the books for decades to come.