EDITOR’S NOTE: Rarely do you get to witness a battle with the line between right and wrong so clearly drawn. The Maryland House Judiciary Committee hearing on the Fourth Amendment Protection Act afforded such an opportunity. One one side, everyday Americans yearning to stop the violations of their rights and the rights of others. On the other side, those concerned only about advancing their own self-interest, and who care nothing about the principles trampled in the process. Following is the story of that hearing. It will take you behind the curtain into a drama most never see play out. It will make you cheer. It will make you scream. But in the end, you will clearly see the triumph of good ideas over evil.
The air was already thick with tension in room 100 of the Maryland House Office Building as the Fourth Amendment Protection Act came before the House Judiciary Committee.
Earlier, Del. Michael Smigiel went off on a panel of state prosecutors and law enforcement officials who essentially testified that warrants hinder catching bad guys. One law enforcement official said “I’m not totally against warrants…” But he opposed a requirement that police obtain a warrant before tracking cellphone locations, or using drones to monitor people. He went on to argue that requiring a warrant would allow pedophiles to stalk Maryland children and terrorists to indiscriminately blow up buildings.
Some might call it fear-mongering nonsense.
Smigiel challenged the panel’s assertions.
“Nobody has come into this legislature in 12 years and said, ‘You know, when I went to a judge I was turned down to get it (a warrant) and we have a problem.’ So, I am asking you, what is the problem with complying with the Fourth Amendment?”
Panel members continued to vehemently protest, saying they couldn’t always get probable cause. Smigiel noted – that’s the point.
“But when you say we can’t get it (a warrant) because we have a problem getting probable cause, well, that begs the questions. You have to get the probable cause.”
That set the stage for testimony on HB1074.
The Fourth Amendment Protection Act would prohibit material support by the state of Maryland as long as the NSA continues to violate the Constitution. It would set the stage for cutting off water and other resources to the NSA facility in Fort Meade. The bill would also make data gathered by federal agencies without a warrant inadmissible in state court.
The hearing began with a panel of supporters sitting at the table facing committee members, along with Del. Smigiel, the bill sponsor. Bill of Rights Defense Committee executive director Shahid Buttar kicked things off, explaining the intent of the bill. He said persistent, warrantless domestic spying is “the quintessence of what the Fourth Amendment was drafted in the Constitution to stop.”
“The state has an opportunity to take advantage of its constitutional prerogative, and I dare say responsibility, to protect the rights of its citizens, especially in light of the federal governments inadequacy to do so.”
Bruce Fein lent some serious legal firepower to the panel, having served as a top Justice Department official in the Reagan administration. He’s since developed a reputation as an advocate for civil liberties and commands respect from both sides of the political aisle. Fein spoke enthusiastically about the Fourth Amendment Protection Act, passion evident in his voice.
“I think that this bill is in the finest traditions of a state government opposing federal encroachment,” he said. “The spirit of the Fourth Amendment bill is about restoring the Fourth Amendment in the state of Maryland and sending a signal to the federal government that the state of Maryland does not want to be complicit in the daily violation of the Fourth Amendment.
Fein closed by eloquently channeling Thomas Paine.
“A patriot saves his country from his own government, and that’s what we’re about today.”
Bill of Rights Defense Committee legal fellow Matthew Kellegrew closed out the panel’s testimony with expert analysis of the bill’s impact in Maryland.
The panel members dispersed and a solitary figure strode up to the table. He quietly took a seat and faced the committee, waiting for the chair to address him. Then, alone and flanked by empty chairs, he tentatively introduced himself.
“I’m Jay Marks, and I’m a resident of Annapolis Maryland.”
He seemed nervous at first, but as he related personal experience with unwarranted spying, Marks gained confidence. His voice grew stronger. Soon, he could no longer contain his passion. It dripped from his words.
“Blanket surveillance is not neutral, is not without cost. With all three branches of the federal government having grown complicit now in warrantless surveillance in clear contravention of the U.S. Constitution, it falls to the state to take independent action to safeguard those fundamental rights that our federal government has compromised.”
Hitting full stride, Marks went on to forcefully urge the committee to pass HB1074, reminding the legislators they don’t have to wait for a court to take action.
“You can stand up for us right now by striking a clean blow to the solar plexus of the federal surveillance state.”
The room fell silent.
Marks got up and made his way back to his seat.
The Imperial March from the Empire Strikes Back movie would have served as the perfect background music as the next panel took the chairs in front of the committee. But only the shuffling of feet and a few hushed whispers broke the silence as the opponents of the Fourth Amendment Protection Act prepared to testify.
In the blink of an eye, the atmosphere of the room changed.
Panic replaced passion.
Hartford County State’s Attorney Joe Cassilly spoke first. He was no stranger to the committee, having endured Smigiel’s wrath during earlier testimony on warrants. Cassily jumped right to the point, making the absurd assertion that if HB1074 becomes law, he will no longer be able to collect child support from deadbeat dads. He claimed the bill would prevent him from working with virtually any federal agency. Cassilly became increasingly shrill as he went on to express fear that he could lose his job for violating the law and made some incoherent comment about presumption of innocence.
Having seemingly run out of steam, Cassilly turned the microphone over to Richard C. Schaeffer, Jr. who said he was testifying “as a citizen.” Of course, he was also testifying as a former NSA executive. He made a big deal about how many times he’d taken and administered the oath of office, swearing to defend and protect the Constitution. Then, apparently wanting to top Cassilly on the absurdity meter, he claimed NSA agents “take the oath very seriously and in no way would violate any law having to do with the citizens protection – defending the citizens of this great nation. I know for a fact this is not done.”
That surely left some in the gallery wondering if perhaps NSA employment somehow made one omnipotent.
Then Schaeffer got to down to brass tacks.
“This bill would put a lot of companies that support that agency out of business.”
Interestingly, Schaeffer never mentioned to the committee that he now runs one of those businesses. After retiring from his spy gig, he started a private consulting firm called Riverbank Associates, LLC, and serves as a principle for an organization called Security Innovation Network.
SINET is a community builder, strategic advisor and catalyst whose passion is to promote innovation, small and large business development and enhanced awareness of early stage and emerging growth companies and enterprises into the Federal Government and industry markets.
It would seem Schaeffer’s interest in this legislation possibly extends beyond that of a concerned citizen.
Next up was a self-described “commie, pinko, liberal, ACLU loving civil liberties guy.”
Len Moodispaw was up front about his business connections with the NSA. He runs KEYW, a 1,200 employee, $300 million per year company that “supports U.S. federal intelligence, defense, and homeland security agencies.” After, bragging about his $100,000 contribution to the ACLU, he blasted the Fourth Amendment Protection Act.
“It would affect my company and the business we do, and put people out of work.”
In other words, I love civil liberties, but this bill will hurt my company.
After holding up a photo of the Maryland 9/11 memorial and implying that failure to continue universal spying will result in more planes crashing into buildings, Moodispaw turned over the mic to Anne Arundel County Council Member Jamie Benoit.
Benoit also established his credentials as an ACLU member and a Democrat. In passing, he mentioned he owns a business, but he asserted that he was at the hearing to testify in his capacity as a council member. “The Fort,” as Benoit’s calls the NSA facility in Fort Mead, sits in his district.
Benoit played a few cards onto the terrorism hand already laid down by Moodispaw, saying the NSA “keeps Americans alive.” As a former Army officer, he told the committee that soldiers in battle rely on NSA information. He never did explain how a soldier in Afghanistan utilizes American’s phone and email records.
Then he took up where the previous two panel members left off, calling HB1074 a “job killing, economy crushing proposal.”
Interestingly, Benoit never mentioned the nature of his business during his testimony. If you visit his official Anne Arundel County Council website, you will find an extensive biography, but no mention of his business. If you visit his campaign website, you will find another extensive bio, but no mention of the mystery business. Only if you track down his LinkedIn page will you find that Benoit serves as chief executive officer and general counsel of Federal Data Systems, Inc. FEDDATA “provides information technology services to commercial and Government markets” and primarily serves “government agencies, bureaus and commissions located in the Washington, D.C. area.”
“I don’t know why we’re debating this bill. I don’t know why it’s before you,” Benoit insisted.
Never once did he mention the Fourth Amendment.
At that point, opponents of the bill probably felt pretty confident. These guys made the case. It would kill the economy. And it would unleash terror. The testimony of supporters was quickly fading into the rear-view.
Then the entire tone of the hearing turned on a single question addressed to Councilman Benoit.
Del. Michael McDermott leaned into the microphone and asked,”Can you tell me where in the bill the NSA is mentioned?”
You could feel a charge of electricity shoot through the room.
Of course, Benoit couldn’t answer, because the word NSA does not appear in the legislation.
McDermott pressed on, and the voltage increased significantly. People leaned forward to listen.
“You spent a lot of time talking about the NSA in your district,” he said. “If somebody is obeying the Constitution of the United States, exactly where is this a problem? Are you implying that the NSA is violating the Fourth Amendment and that it needs protection?”
Benoit seemed momentarily flustered, but quickly recovered his feet.
“No, I think the implication is the NSA, in the course of doing its job, is in fact collecting information to accomplish it’s mission.”
The crowd could clearly sense McDermott was going somewhere Benoit didn’t want to be. Realizing what was happening, supporters of the bill watching via the Internet began to crack smiles.
“Well, if they’re not violating the Fourth Amendment, why is this an issue?”
That set Benoit to stammering.
“Well, I – I…There’s no question that they’re not violating the Fourth Amendment at NSA. I don’t have any knowledge of it. It’s being made an issue by the sponsor of the bill.”
McDermott zeroed in for the kill.
“Wait! I’m asking you specifically if NSA or the Department of the Army, or anybody else is not violating the Fourth Amendment of the United States Constitution, if what they’re doing is within the purview of the government and is perfectly legitimate and legal, why worry they’ll object to this bill?”
Benoit didn’t directly answer the question, but started to mention that it could cut off NSA resources.
McDermott cut him off.
“When would these things happen?”
“Well, they would happen upon the finding that there is…”
McDermott jumped in again, driving home his point.
“That they violated the Fourth Amendment of the Constitution.”
Those opposing the bill all hit on a common theme. It was pretty clear to everybody in the room. McDemott proceeded to pull the veil completely away.
“I’m troubled on two ends. I mean, I understand your concerns from an economic standpoint, which is what you’ve expressed. But I have not heard the same zeal from you about the Constitution, or what may or may not be happening in our state at the expense of the Fourth Amendment. And we know clear well we’ve had people come testify before Congress that have out and out lied about what the government is or isn’t doing. These are not baseless concerns that people have. So, when you come in and you act like this is the worst thing known to man, and you want to just dispose of it wholesale, under the circumstances, I would say that would be a waste of our obligation to uphold the Constitution, and that’s what we’re trying to do.”
Benoit tried for one final Hail Mary, saying that the issue should be left to Congress.
“We ALL took an oath,” McDermott said.
The committee moved on to other business. The energy left the room. But the lines were starkly drawn. It was a vivid divide between those most concerned with the Constitution and basic civil liberties, and those most concerned about their own self-interest.
Right and wrong.
Black and white.
Good and evil.