Why Patriot Act Author Argues Surveillance Powers Were Abused

For Rep. Jim Sensenbrenner, one small word made a very large difference.

Demonstrators hold a banner bearing the image of Edward Snowden with a message of thanks during a protest against government surveillance on October 26, 2013 in Washington, DC. The disclosures of widespread surveillance by the US National Security Agency of US allies has caused an international uproar, with leaders in Europe and Latin America demanding an accounting from the United States.
National Journal
Stacy Kaper
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Stacy Kaper
Dec. 11, 2013, 3:02 p.m.

Rep. Jim Sensen­bren­ner found out the power of lan­guage the hard way.

As a lead spon­sor of the USA Pat­ri­ot Act in 2001, he sup­por­ted the bill’s reau­thor­iz­a­tion five years later — in­clud­ing the in­ser­tion by the Bush ad­min­is­tra­tion of one small word that made a very big dif­fer­ence.

“When we did the reau­thor­iz­a­tion, the re­quest came from the ad­min­is­tra­tion that the word ‘rel­ev­ant’ be in­ser­ted in Sec­tion 215,” Sensen­bren­ner said. “I can say that all of us that worked on the reau­thor­iz­a­tion thought that put­ting ‘rel­ev­ant’ in where it didn’t ex­ist be­fore was lim­it­ing ver­biage.”

But in the time since, both the Bush and the Obama ad­min­is­tra­tions have used that word to vastly broaden the scope of Na­tion­al Se­cur­ity Agency sur­veil­lance activ­it­ies, us­ing it as a jus­ti­fic­a­tion to col­lect phone and In­ter­net re­cords from mil­lions of Amer­ic­ans who are un­der no sus­pi­cion of ter­ror­ist activ­ity.

“They asked for one thing and did an­oth­er,” Sensen­bren­ner said. “Frankly, they didn’t get caught un­til all the in­vest­ig­a­tions and rev­el­a­tions fol­low­ing [Ed­ward] Snowden’s de­par­ture.”

Now, the Wis­con­sin Re­pub­lic­an ar­gues that the Bush and Obama ad­min­is­tra­tions both ab­used the NSA’s sur­veil­lance powers, stretch­ing them far bey­ond con­gres­sion­al in­tent. And he is fight­ing to rein in the very law he helped cre­ate.

Sensen­bren­ner, the former chair­man of the House Ju­di­ciary Com­mit­tee, is cham­pi­on­ing the USA Free­dom Act with Sen­ate Ju­di­ciary Com­mit­tee Chair­man Patrick Leahy, D-Vt., meant to ap­ply the brakes to the NSA’s powers. It would end the agency’s bulk-data col­lec­tion prac­tices and provide an av­en­ue to ap­peal de­cisions of the For­eign In­tel­li­gence Sur­veil­lance Court, which ap­proves sur­veil­lance re­quests.

Sensen­bren­ner ar­gues that poor over­sight in Con­gress en­abled the ab­use of powers to go un­checked — and he’s de­term­ined to do something about that, as well.

While the rev­el­a­tions about the NSA were a wake-up call to many on Cap­it­ol Hill, an amend­ment from Michigan Re­pub­lic­an Rep. Justin Amash to end the bulk-data col­lec­tion failed on a 205-217 vote in Ju­ly.

Sensen­bren­ner is not seek­ing a com­plete re­versal of the USA Pat­ri­ot Act. He says that cer­tain sur­veil­lance activ­it­ies are ne­ces­sary. He says he wants to bet­ter align the bal­ance between per­son­al pri­vacy and na­tion­al se­cur­ity.

“I was al­ways con­cerned about op­por­tun­it­ies for ab­use,” he said, “and I stated re­peatedly that when we are deal­ing with an is­sue like this there has got to be a bal­ance between se­cur­ity and re­spect for civil liber­ties.”

Sensen­bren­ner has amassed at least 107 co­spon­sors, but it is un­clear wheth­er House lead­er­ship, which has de­fen­ded the NSA’s ac­tions as vi­tal for na­tion­al se­cur­ity, will al­low a vote on his bill. Lead­er­ship has favored an ap­proach taken by the House In­tel­li­gence Com­mit­tee to pro­tect the NSA, and it pulled an In­tel­li­gence Com­mit­tee markup on it last month, in fa­vor of mov­ing the bill dir­ectly to the floor.

Ju­di­ciary Chair­man Bob Good­latte, R-Va., has made it clear to House lead­ers that he ex­pects his com­mit­tee, which has primary jur­is­dic­tion over FISA, to put its im­print on any NSA re­form. Good­latte has even called Sensen­bren­ner’s bill a “good first step.” But he is look­ing to build con­sensus and is non­com­mit­tal about mark­ing up the bill, ac­know­ledging the shared turf.

“We don’t know yet, be­cause we have an­oth­er com­mit­tee, the In­tel­li­gence Com­mit­tee,” he said. “We have a lot of work to do to make sure we have something that achieves the right bal­ance between pro­tect­ing peoples’ civil liber­ties and pro­tect­ing them from ter­ror­ism.”

Still, Sensen­bren­ner has a backup plan. When sur­veil­lance pro­vi­sions in the cur­rent law ex­pire in 2015 and those un­der FISA run out in 2017, he is count­ing on law­makers to ree­valu­ate sur­veil­lance au­thor­it­ies.

“I made it quite plain, Con­gress is not go­ing to re­new either of those au­thor­it­ies un­less they are amended,” he said. “My mes­sage to the NSA and its sup­port­ers is, you had bet­ter wake up and agree to amend­ments to both of these sec­tions, be­cause time is go­ing to run out. And if the at­ti­tude is one of stone­walling “¦ the NSA will have none of the leg­al au­thor­ity that they cur­rently have.”

Fawn Johnson contributed to this article.
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