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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

But the more narrow categories of terrorism and spying (“clandestine intelligence activities”) are markedly different. If intel is sought with a general purpose to protect the nation from these perils, the statute expressly provides that Americans may be investigated — again, not just that their records may be sought, but that they may actually be the targets of the investigation. The only limitation is that the investigators’ interest may not be triggered solely by First Amendment–protected activity. More concretely, an American citizen like the late al-Qaeda operative Anwar al-Awlaki may not be investigated solely based on, say, his political dissent or his religious affiliation. But if informants report to the FBI that he’s been urging violent jihad in a mosque, he may be investigated — he is not immunized by virtue of his U.S. citizenship, anti-American politics, or adherence to Islam.

The presentation of a business-records application to the FISA Court is covered by subsection (b), which directs the FBI to include “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to” one of the three types of “authorized investigation” described above (to repeat: general foreign intel, terrorism, and spying). Again, there is no requirement that the person whose records are sought be a target or suspect.

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In subsection (b)(2), Congress provided three broad examples of how business records could be “presumptively relevant” to an authorized investigation. These involve records that “pertain to” (i) “a foreign power or an agent of a foreign power”; (ii) “the activities of a suspected agent of a foreign power who is the subject of such authorized investigation”; or (iii) “an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation.” Notice, however, that the statute frames these as nonexclusive examples of how records could be relevant. Significantly, there is no hard limitation on what the executive branch may deem to be “relevant.”

This is the crux of Representative Sensenbrenner’s dissembling. He and his fellow lawmakers could have tried to draw strict limits, as Sensenbrenner now feigns having done. They could have tried to stipulate that Congress’s three examples were not mere examples (“presumptively relevant”) but were, instead, exclusive guidelines — i.e., that nothing would be considered “relevant” for purposes of acquiring business records unless it pertained to (as in shed light on) the activities of foreign powers and their agents as described above in (i), (ii), and (iii). But they did not do that.

I say they could have “tried to” do it, rather than just done it, because it is by no means certain that the PATRIOT Act would have passed under such conditions. In the heat of today’s metadata controversy, it is hard to put ourselves back in the mindset of PATRIOT’s 2001 enactment and 2006 reauthorization. But let’s try.

The bone of contention back then was not the likelihood or propriety of assembling massive databases relating to Americans who have nothing to do with terrorism. It was over the control of national defense: Should the president or the judiciary have the final say on what is required for our security against foreign threats? In the spirit of the times, national-security conservatives were dominant. Intelligence gathering, traditionally, constitutionally, and for practical reasons, is an executive responsibility. It was highly improbable that any strict limitations effectively shifting control of it to the courts were going to fly. That is why the PATRIOT Act reads as it does. And no one was hoodwinked about that. This was a high-profile, knock-down, drag-out fight that went on for years — in government, academia, and the punditocracy — until PATRIOT was finally reauthorized in March 2006.

Sensenbrenner is disingenuously portraying the debate over the PATRIOT Act as a simple matter of black and white, as if he had been out there at the time saying, “Just go after alien terrorists and leave Americans alone.” Not even close. To draft the PATRIOT Act was to thread a needle that (a) freed the executive branch aggressively to pursue terrorists who insinuate themselves into our society while plotting to kill us, but (b) also enhanced civil-liberties protections.

Here is the salient point today’s revisionist historians miss: Civil-liberties protections were not eviscerated — far from it. They were back-ended, where they would do the most good without stopping the government from collecting — not scrutinizing but just collecting — potentially useful information.



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