Republican congressman Jim Sensenbrenner, the lead author of the original 2002 Patriot Act, is crying foul over the Obama administration’s handling of the National Security Agency’s privacy violations.
As I noted in today’s column, more and more conservatives are raising questions about the NSA’s surveillance procedures. Sensenbrenner specifically zeroes in on the Obama administration’s previously secret interpretation of the Patriot Act that it finally released after much delay on August 9. In it, government lawyers justified the NSA’s bulk collection of every American’s phone records. Sensenbrenner, who chairs Judiciary’s Subcommittee on Crime, Terrorism, and Homeland Security says the administration’s reasoning is being used to justify a gross invasion of privacy.
Section 215 of the Patriot Act authorizes the collection of certain business records — in this case, phone records — when there are reasonable grounds to believe that the records are relevant to an authorized investigation into international terrorism. The key legal term is “relevance.”
Under this relevance standard, the administration has collected the details of every call made by every American, even though the overwhelming majority of these calls have nothing to do with terrorism.
Indeed, Sensenbrenner says the administration’s own memo acknowledges that “its interpretation of the statute is at odds with the plain meaning of ‘relevance.’” It argues there is a “‘particularized legal meaning’ of relevance, but it ultimately concedes that it fails to meet this standard as well.” The government memo falls back on the argument that “all of our phone records are broadly relevant because potential connections between the individual data points are of value. This is where it relies on the tired metaphor of the needle in the haystack, arguing that it needs the haystack to find the terrorism needle.” But, in reality, the government has been collecting the haystack without any knowledge that there is a needle inside it.
As for Congress, Sensenbrenner is incensed that “the administration actually goes further and reasons that Congress essentially sanctioned the abuse of the Patriot Act by failing to stop the administration from abusing it.” Sensenbrenner ends his op-ed by observing that he and the vast majority of Congress had no idea the phone calls of Americans were being scooped up in bulk. “The suggestion that the administration can violate the law because Congress failed to object is outrageous. But let them be on notice: I am objecting right now.”