A new report from the Heritage Foundation suggests that the 16 states that have proposed legislation limiting the power of the National Security Agency in a post-Snowden America, are proposing an “unconstitutional fix” to the federal government’s Orwellian antics.
The report by Andrew Kloster, legal fellow with the conservative think tank’s Edwin Meese III Center for Legal and Judicial Studies program, said that state legislation can’t do anything to protect Americans from the prying eyes of the NSA, because “Changes to the NSA must come at the federal level.
“Congress can direct legislative changes; the President can manage the agency consistent with statute and his Article II authority; federal courts can ensure that the NSA’s actions comply with statute and the Constitution,” Kloster wrote. “States, however, have no business discriminating against federal agencies.”
He said that if the laws are to pass, specifically the Fourth Amendment Protection legislation in Maryland, then taxpayers will be on the hook for paying the Department of Justice attorneys’ fees “when the DOJ inevitably sues in federal court to keep the power on and the water running.”
Michael Maharrey, communications director for the Tenth Amendment Center, the group that issued a template to state lawmakers to help curb the NSA’s powers on a state-level, said Kloster’s report indicates a misunderstanding of what the bills are meant to do and says states with pending anti-NSA legislation would be awarding residents protection by passing the bill.
“In the simplest form, the legislation prohibits the state from cooperating or providing any support to the NSA,” Maharrey said. “It doesn’t try to actually block anything that the NSA is doing in a direct manner.”
In a post on the Tenth Amendment Center’s website, Maharrey wrote that while there has been opposition to the passage of the Fourth Amendment Protection Act by those who defend the NSA in the name of national security, and others who believe cutting off electricity and water sources to NSA facilities in states isn’t an effective tactic, he said the Heritage Foundation is the first to challenge the legality of the legislation by pointing to the Constitution’s Supremacy Clause.
Maharrey explained to MintPress that the legislation states are proposing typically has four facets to it. The first thing the bill does is prohibit state and local agencies from providing the NSA with any material, which means that all government-owned utilities would be prohibited from providing NSA offices with water and electricity.
He said the second, and arguably most significant, thing the bill does is make any information gathered by the NSA without a warrant inadmissible in state court, which Maharrey says is a direct protection for the American people.
Thanks to NSA-whistleblower Edward Snowden, Maharrey said it was discovered that the NSA shares information gathered without a warrant with the Drug Enforcement Administration’s Special Operations Division. “None (of this information) had to do with terrorism or national defense,” Maharrey said, explaining it was just “run-of-the-mill criminal stuff,” which is why the NSA required the SOD to not disclose where they got the information. He said they knew the information wouldn’t be constitutionally admissible in court because it was gathered without a warrant.
The remaining two facets of the legislation would block public universities from serving as NSA research facilities or recruiting grounds as part of its National Centers of Academic Excellence Program, and would prohibit any corporations that try to provide resources denied by the state to the NSA from being eligible for state and local government contracts or work.
Of the 16 states with pending Fourth Amendment Protection legislation, Maharrey said 11 or 12 have legislation that implements all four facets of the Tenth Amendment’s sample legislation, while three or four have legislation that solely limits data sharing.
Even if Kloster and others at the Heritage Foundation are not convinced this legislation is constitutionally sound, Maharrey suggested the legislation has been reviewed by many legal scholars, all of whom agree that while the states can’t arrest NSA agents, states can refuse to provide water or electricity to NSA facilities located within their borders.
In his blog post, Maharrey said Bill of Rights Defense Committee executive director and OffNow coalition partner Shahid Buttar predicted that some would argue that the NSA is a foreign policy instrument and that states don’t have the authority to make their own foreign policy, which is true. However, Buttar said that the law sides with the states in this particular case.
“(W)hether or not states have the authority to direct their own public utilities is a pretty settled question, and there is no actual legitimate argument that would suggest that the federal government has the right to commandeer those state resources,” he said.