Sen. Lindsey Graham, R-S.C., panned a lawsuit against National Security Agency data collection filed by Sen. Rand Paul, R-Ky., saying that the bulk phone data collection program does not involve the Fourth Amendment.
"I think collecting data is not a Fourth Amendment activity if it's related to gathering intelligence to prevent a terrorist attack," Graham told the Washington Examiner. "It's not being used to prosecute anybody. This is an intelligence-gathering process and we'll leave it up to the courts to see if it somehow has violated the Fourth Amendment."
Paul told reporters that the program conflicts directly with the Fourth Amendment. "I just want you to go to a judge, have a person's name, and individualize their warrant," he said, explaining that he doesn't oppose spying or the National Security Agency's ability to review some phone records. "That's what the Fourth Amendment says. I'm not against going to an individual who we suspect, with a warrant, and getting their phone records, and then if they called 100 people, I'm not against looking at those people."
The lawsuit drew mixed reactions in the Senate. Virginia Democrat Tim Kaine said that the NSA program needs some curtailing, but suggested that the real problem lies with the nature of the authorization for the use of military force that provides the legal backdrop for what used to be called the war on terror.
"I think most of the problems with these programs come from the fact that we have an open-ended authorization of the use of military force, so that the declaration of war that was passed by Congress after 9/11 is not limited in time or geography," he told the Examiner. "You end up doing things during war for national security reasons that you don't necessarily do without war as a predicate, and I think the declaration is very open-ended."
Graham and Sen. John McCain, R-Ariz., also take issue with the authorization, saying it's too narrowly tailored because it doesn't account for threats posed by new terrorist groups, such as the perpetrators of the attack on the U.S. mission in Benghazi that killed U.S. ambassador Christopher Stevens and three other Americans.
"Remember, when you look at the universe [of the] authorization, it basically said 'those responsible for 9/11,'" McCain said when asked about Kaine's comments, before suggesting that President Obama is acting without legal authority. "So they are stretching the definition, I think, beyond any rational bounds."