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Rewriting FISA History
Representative Sensenbrenner does not appear to have read the law he “wrote.”

Representative James Sensenbrenner

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Andrew C. McCarthy

Confronted with a few embarrassing assertions in his autobiography, pro-basketball legend Charles Barkley famously protested, “I was misquoted.” Apparently, Representative James Sensenbrenner knows the feeling. The Wisconsin Republican claims to have written the PATRIOT Act. Like the Round Mound of Rebound, though, he seems less than familiar with his handiwork.

Congressman Sensenbrenner purports to be stunned by revelations that the National Security Agency (NSA) has, for years, collected records of phone usage by untold millions of Americans. This was done under the PATRIOT Act’s business-records provision, passed and later reauthorized while Sensenbrenner chaired the House Judiciary Committee. He is thus closely identified with the law and incensed over its use to amass this “metadata” trove. Or is it that he is mortified over publicity about the trove and the ensuing ire it has provoked in some Republican and tea-party precincts?

In such a spot of bother, most politicians would be content to gripe that their legislation is being used in a way they never contemplated. Not Sensenbrenner. He insists that the law is being violated. The PATRIOT Act’s plain terms, he maintains, do not permit the ongoing data collection, period. He therefore accuses both the Justice Department (which began the program under Bush and has expanded it under Obama) and the judges of the FISA Court (the special tribunal created by Congress in the 1978 Foreign Intelligence Surveillance Act) of running roughshod over the strict, clear limitations he says he wrote into the law.

So is Sensenbrenner encouraging you to verify this by reading the law for yourself? Nope. His highly exaggerated claim of PATRIOT Act authorship is a transparent attempt to become the showstopper authority on what the act says. Just take his word for it — no need to check his version against the text.

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In truth, the controversial PATRIOT Act had many authors, drawn from both parties, both political branches of government, and both chambers of Congress. Sensenbrenner conceded as much in a recent op-ed he penned for the U.K.’s Guardian — correctly crediting the Bush Justice Department with primary authorship, but noting that many lawmakers got involved in the drafting process, especially during the frenetic aftermath of the 9/11 atrocities.

As I’ve recounted elsewhere in refuting Sensenbrenner’s claims, lawmakers also got a good deal of drafting advice from outside the government. That was especially true in 2005–06, when, largely due to Sensenbrenner’s insistence at the time of PATRIOT’s original passage, several significant provisions were scheduled to sunset. As public debate over the question of reauthorizing PATRIOT heated up, the American Bar Association sponsored exchanges between former government lawyers on the national-security Right, including moi, and our progressive and libertarian counterparts. (See, e.g., this debate between Ohio State law professor Peter Swire and me over the business-records provision — eventually published in a 2005 ABA compendium called Patriot Debates: Experts Debate the USA PATRIOT Act.) I was also involved in a bipartisan working group of former government officials who helped lawmakers work through PATRIOT issues. After months of debate, our group (which eventually included future Obama-administration attorney general Eric Holder, as well as several other Clinton- and Bush-administration veterans) came to a consensus about the need to reauthorize several PATRIOT provisions — very much including the business-records statute.

By recounting this kitchen glutted with chefs, I do not mean to suggest that Sensenbrenner was a tangential figure. The Justice Department was the lead executive agency pushing the bill, and he chaired the committee responsible for Justice Department oversight. Plainly, his support was pivotal — and he is no wallflower. Nevertheless, he now says he not only helped push the measure through but actually wrote it. “I authored the Patriot Act,” he proclaimed in the Guardian. With even less restraint, he repeated the claim Monday night when interviewed on Hannity, my friend Sean Hannity’s prime-time Fox News television program, popular among conservatives.


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