Guest post by G. Jack King:
In a column published in today’s Guardian (U.K.) titled “This abuse of the Patriot Act must end,” U.S. Congressman Jim Sensenbrenner writes, “The administration claims authority to sift through details of our private lives because the Patriot Act says that it can. I disagree. I authored the Patriot Act, and this is an abuse of that law.”
Nice sentiment, but it’s not just misleading — it’s all false. Let me explain.
As yesterday’s FourthAmendment.com posting points out, the Patriot Act does authorize the administration to collect telephony and internet metadata. Arguing that doing what the law authorizes is an abuse of the law is sophistry.
Nearly every provision of the Patriot Act, from electronic surveillance to money laundering to information sharing between the law enforcement and intelligence communities, was drafted by career lawyers in the U.S. Department of Justice in the 1990s and introduced or circulated piecemeal during the Clinton Administration. Hardline right wingers like Rep. Sensenbrenner, then-chair of the House Judiciary Committee, and Charles Grassley in the Senate, successfully opposed giving a Democratic president the same extraordinary surveillance powers that were passed nearly unanimously in both houses in October 2001. (Who dared vote against a law in the weeks after Sept. 11, 2001, that called itself the “United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism” –- short titled “USA-PATRIOT Act of 2001”?)
As for Rep. Sensenbrenner’s claim that he authored the Patriot Act, well, that’s just false, as this contemporaneous 2001 article in the Milwaukee Journal-Sentinel explained. Now in fairness, as that article shows, the events of 9-11 and a Republican administration in power merely softened his view of expanded government surveillance powers. The congressman was a supporter of several “sunset provisions,” including some of the surveillance provisions, which he called then “roving wiretaps.”
Unfortunately, Rep. Sensenbrenner sponsored H.R.3199: USA PATRIOT Improvement and Reauthorization Act of 2005. He also supported futher extension of the Patriot Act just two years ago. Here’s an excerpt from his Feb. 8, 2011, speech on the House floor supporting re-enactment:
In nineteen days, three key national security laws will expire unless Congress votes to reauthorize them. H.R. 514 temporarily extends these laws – FISA business records, roving wiretaps, and the lone wolf definition – to December 8th of this year.
As Chairman of the House Judiciary Committee, I oversaw the enactment of the USA PATRIOT Act in response to the 9/11 terrorist attacks. Title II of the Act addressed enhanced foreign intelligence and law enforcement surveillance authority. Sixteen sections of that title were originally set to expire on December 31, 2005.
Also set to expire on that date was section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), the lone wolf definition.
In 2005, I again spearheaded the effort to reauthorize the PATRIOT Act. Recognizing the significance of the Act to America’s counter-terrorism operations and the need for thorough oversight, the House Judiciary Committee held nine subcommittee hearings, three days of full committee hearings, and a robust full committee markup reauthorizing legislation.
The USA PATRIOT Improvement and Reauthorization Act of 2005 made permanent 14 of the 16 intelligence provisions. The Act extended the sunset on Section 206 FISA roving wiretaps, Section 215 FISA business records, and the lone wolf definition to the end of 2009.
But the three remaining temporary provisions were not reauthorized before the 2009 deadline. Instead, the then-Democratic Majority chose to twice extend the provisions – first for two months and then for one year, without ever bringing a reauthorization bill to the floor.
This Congress, things will be different. We must approve a temporary extension today to keep these critical national security tools in place. But this extension will afford Congress sufficient time to hold hearings and markups and adopt a permanent reauthorization of these provisions this year, which I intend to introduce soon.
The time for multiple, temporary extensions is over. The terrorist threat has not subsided and will not expire. Neither should our national security laws.
The American people may have allowed their elected representatives to trade their liberty for the illusion of security, but Rep. Sensenbrenner should not be let off the hook by saying that what the current administration is doing with the law is not what he intended.
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Jack King recently retired as NACDL Public Affairs Director and is a former legislative and legal affairs writer. This is the first guest post.
