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

Representative James Sensenbrenner


Andrew C. McCarthy

Here, it bears emphasizing, much as it pains libertarians to be reminded, that we are talking about information that is not protected by the Fourth Amendment. We are not talking about the constitutional categories (your person, your home, your private papers and personal effects) in which — absent a few “special needs” recognized in our jurisprudence — the government may not seize property in the first place. When it comes to those Fourth Amendment categories, the government does not get to say, “We’ll take your property but we promise not to look at it unless we have a good reason.” Instead, we are talking about information that is the property of third parties, like phone-usage data maintained by service providers. When it comes to third-party records, the Fourth Amendment allows the government not only to seize but also to scrutinize them without a warrant.

The PATRIOT Act, however, does not. To be sure, its framework gives the FISA Court little power to prevent the executive from collecting potentially relevant information. But after collection, minimization strictures are imposed to restrain the executive from scrutinizing what it has collected.

First of all, what is collected is not even identifiably a particular user’s records unless more is done to put a name on a number. The government must get FISA Court permission, based on individualized suspicion, to review a person’s phone usage. Only an infinitesimal percentage of the records are ever scrutinized — of the millions collected, only 300 were reviewed last year. And records are continuously purged: The government must destroy records within five years. The NSA must report to the court on the program every 30 days, and the court’s authorization orders lapse every 90 days unless the court renews them.

This ongoing judicial review is in addition to continuous congressional oversight — particularly by the judiciary committee on which Sensenbrenner still sits, as well as the intelligence committee. As former vice president Dick Cheney pointed out in a Fox News interview last Sunday, the suddenly controversial NSA programs have been ongoing for a decade. When the programs began, Cheney and intelligence-community higher-ups briefed congressional leaders on what the NSA was up to — and it is hard to imagine that a longtime insider like Sensenbrenner, who claims to have written the law that makes the program possible, was kept in the dark.

Moreover, the judiciary and intelligence committees receive regular reports and briefings, besides having access to the applications and judicial opinions related to the program about which Sensenbrenner, suddenly, claims to be shocked. Indeed, at a Judiciary Committee hearing last week, Sensenbrenner’s longtime senior Democratic counterpart, Jerrold Nadler — while endeavoring to argue that former NSA contractor Edward Snowden had not really done material damage by leaking the program — observed that the record-collection had been common knowledge on Capitol Hill for years:

I don’t understand how national security was breached [by Snowden’s leak]. We knew publicly from 2006 at least, from a report in the USA Today on May 11, 2006, about the — basically the existence of a massive NSA database of . . . metadata from domestic phone calls. That was reported back then. We debated it in this committee and on the floor of the House in connection with the reauthorization I believe in 2012 and in 2008, at least several times, so that was known publicly.

There is nothing illegal or groundbreaking in the NSA’s metadata collection. Congressman Sensenbrenner came close to admitting as much when he told Sean Hannity that “we’re going to have to have some changes in Section 215 and maybe in the law that authorizes the FISA Court to do what it has done.” If government officials were actually violating the law, as Sensenbrenner alleges, there would be no reason to amend it — the problem would be corrupt officials, not the statute he purports to have so carefully written.

PATRIOT’s business-records provision is scheduled to sunset in two years. There is a worthy debate to be had about whether wartime defense measures should outlast a war President Obama proclaims is over (even if the enemy has not gotten the memo), and about whether government has gotten too bloated and untrustworthy to execute national-defense programs that demand efficiency and a degree of trust. Furthermore, regardless of what our lawmakers have long known about the metadata and other NSA programs, the public is genuinely surprised to learn that data about all of us is being collected. The government has not adequately explained why it is necessary to have files on 300 million people in order to track a statistically undetectable sliver of terrorists. Until that explanation is forthcoming, you don’t even get to the matter of whether our law strikes the right balance between security and privacy.

These are serious questions and they cry out for a serious discussion. That discussion is not advanced by exaggerated claims of authorship, error-ridden descriptions of statutory terms, and unfounded accusations of lawlessness. Congressman Sensenbrenner ought to know better.

— Andrew C. McCarthy is a senior fellow at the National Review Institute. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy.