Admit It, Rep. Sensenbrenner: You Were Wrong About the Patriot Act

An author of the controversial legislation keeps defending it -- even though he's felt betrayed by related abuses three times.
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George W. Bush signs the Patriot Act into law, with James Sensenbrenner, one of its authors, at upper right. (Reuters)

Upon hearing that the FBI sought and received the phone data from millions of Verizon customers using Section 215 of the USA Patriot Act, Republican Rep. Jim Sensenbrenner expressed dismay. 


"As the author of the Patriot Act, I am extremely disturbed by what appears to be an overbroad interpretation," he wrote in a letter to Attorney General Eric Holder. "These reports are deeply concerning and raise questions about whether our constitutional rights are secure." He went on to argue that the Patriot Act was "a careful balancing" * of national-security interests and constitutional rights. "While I believe we found an appropriate balance, I have always worried about potential abuses of the Act," he wrote. "I do not believe the released FISA order is consistent with the requirements of the Patriot Act. How could the phone records of so many innocent Americans be relevant to an authorized investigation?"

Kudos to Sensenbrenner for speaking up on behalf of the Constitution (and showing how misleading it is for Director of National Intelligence James Clapper to claim that "members of Congress have been fully and repeatedly briefed" about the program and that it "has been authorized by all three branches of the Government." No, the White House shared the program with select members of Congress, some of whom were deeply alarmed but powerless to stop it.) The letter also casts doubt on the claim that what Team Obama has done was obviously legal.

But it is awfully suspect for Sensenbrenner claim that the Patriot Act struck an appropriate balance; that it had a worrisome potential for abuse; and that it has in fact been abused by Obama -- especially when the abuse in question is exactly the sort of thing critics warned against!

Yes, this is just a letter dashed off in a single news cycle. But Sensenbrenner has had ample cause to rethink the wisdom of the bill he authored on several previous occasions. He has a curious history of insisting that it is good law, then feeling "betrayed" by the people implementing it.

Consider this. Right from the start, civil libertarians warned that the Patriot Act would be used against innocent Americans. Here's a typical example from a 2005 Washington Post story that quotes an ACLU lawyer: "Although the House Judiciary Committee's base bill does not expand the Patriot Act in the unwise and unwarranted way the Senate Intelligence Committee proposed, it can and must be modified to ensure that Patriot powers are focused on terrorists and not ordinary Americans."

On March 1, 2006, Sensenbrenner published an op-ed in USA Today dismissing critics who warned of future abuses (emphasis added):
Zero. That's the number of substantiated USA Patriot Act civil liberties violations. Extensive congressional oversight found no violations. Six reports by the Justice Department's independent inspector general, who is required to solicit and investigate any allegations of abuse, found no violations.

Intense public scrutiny has yet to find a single civil liberty abuse. Despite many challenges, no federal court has declared unconstitutional any of the Patriot Act provisions Congress is renewing.

Building upon this stellar record, congressional negotiators added more than 30 civil liberty safeguards not included in current law to ensure that the Patriot Act's authorities would not be abused in the future. Remarkably, that's still not enough for some.

The Patriot Act has kept us safer and has not violated anyone's civil rights. It deserves to be renewed.
Not long after that, "a Justice Department audit ... said that the FBI used the Patriot Act improperly and unlawfully to gain information about people in the United States." The March 9, 2007 PBS item from which that quote is drawn quotes Sensenbrenner several times. "I am shocked," he said. "I think that the Justice Department has overreached. There's something seriously wrong with the internal management of the Justice Department, and that better be fixed, because if it isn't, the support for the internal part of our war against terrorism is going to evaporate rapidly."

He also said that "the Patriot Act reauthorization, which I sponsored and which was passed and signed into law in March of last year, put four important civil-liberties requirements on the Patriot Act, including ways that somebody who got one of these could go to court and get them quashed, as well as authorizing the inspector general to do the audit which we found out about today."

Civil libertarians were under no illusion that the reauthorization of the Patriot Act adequately protected against the likelihood of future abuses. "The Patriot Act gives the government sweeping authority to seize sensitive personal information and belongings," a spokesperson for the New York Civil Liberties Union said in a typical 2008 statement.

Now skip ahead to the April 2010 story, "Sensenbrenner Feels 'Betrayed' by FBI's Patriot Act Violations." Here's an excerpt that ends with a striking visual metaphor:
Rep. F. James Sensenbrenner (R-Wis.) said he was frustrated by the FBI's actions, which he said showed the agency wanted to get around the restrictions that Congress put in place under the Patriot Act. Sensenbrenner said it was especially frustrating because as the author of the Patriot Act, he worked closely with the FBI to ensure the agency had all the tools it needed and has taken a lot of criticism from Democrats over the law.

"I came to this whole issue as your friends and I feel betrayed," said Sensenbrenner. "I don't think you're getting the message."

Exigent letters were never approved by Congress, said both Republicans and Democrats, calling "exigent letters" a term that the FBI invented.

Sensenbrenner said he was concerned about this type of evasion and insisted on requiring, by law, annual Inspector General reports because he "was afraid of having the fox guard the chicken coop down the street was going to end up with activities that were going to end up embarrassing the government."
"Every time we tried to patch up a hole in what the FBI was doing you figured out how to put another hole in the dike, and this little Dutch boy has only got 10 fingers to put in the dike," said Sensenbrenner.
So here we are again.

For at least the third time, Sensenbrenner says that the FBI has betrayed the true intentions of the Patriot Act and violated the civil liberties of Americans. What ought to be obvious, by now, is that the law he wrote and championed -- and defended against the notion that it would be abused -- has been repeatedly abused because it is flawed. Civil liberties have repeatedly been violated because it doesn't do enough to protect them. So long as it remains law, abuses will happen again. Is the little Dutch boy at the dike going to figure that out before he runs out of fingers?

Update: More here from Marcy Wheeler.
__
*Note that the talk of "balancing" constitutional rights and security implicitly concedes that the Patriot Act diminished our constitutional rights. What's the world for laws that do that? Ah, yes: "unconstitutional."
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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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