By Representative Sensenbrenner
Published June 9, 2013
We've gotten used to what "Big Government" looks like – Washington's unchecked deficit spending, the Obama administration's policing of the press and the IRS's targeting of conservative groups. But the problem is bigger than we thought. "Big Brother" is watching. And he is monitoring the phone calls and digital communications of every American, as well as of any foreigners who make or receive calls to or from the United States.
Last week, the Guardian reported that the Obama administration is collecting records of every call made to, from or within the US, as well as records of many digital communications. President Obama has tried to deflect criticism by claiming "every member of Congress has been briefed on this program." While some members of Congress were briefed – particularly those on the intelligence committees – most, including myself, were not.
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.
I was the chairman of the House judiciary committee when the US was attacked on 11 September 2001. Five days later, the Justice Department delivered its proposal for new legislation. Although I, along with every other American, knew we had to strengthen our ability to combat those targeting our country, this version went too far. I believed then and now that we can defend our country and our liberty at the same time.
I immediately called then-House Speaker Dennis Hastert and asked him for time to redraft the legislation. I told the speaker that if the legislation moved forward as drafted, I would not only vote against it, but would actively oppose it.
The country wanted action, and the pressure from the White House was intense. To his credit, Speaker Hastert gave us more time. There were endless meetings and non-stop negotiations with the White House, the FBI and the intelligence community. The question could not have been more fundamental: how could we defend our liberty and protect the American people at the same time?
The legislation had to be narrowly tailored – everyone agreed that we could not allow unrestrained surveillance. The Patriot Act had 17 provisions. To prevent abuse, I insisted on sunsetting all the provisions so that they would automatically expire if Congress did not renew them. This would allow Congress to conduct oversight of the administration's implementation of the act.
In 2006, Congress made 14 of the provisions permanent because they were noncontroversial. The three remaining provisions, including the so-called business records provision the administration relied on for the programs in question, will expire in 2015 if they are not reauthorized.
The final draft was bipartisan and passed the judiciary committee unanimously. The Patriot Act has saved lives by ensuring that information is shared among those responsible for defending our country and by giving the intelligence community the tools it needs to identify and track terrorists.
In his press conference on Friday, President Obama described the massive collection of phone and digital records as "two programs that were originally authorized by Congress, have been repeatedly authorized by Congress". But Congress has never specifically authorized these programs, and the Patriot Act was never intended to allow the daily spying the Obama administration is conducting.
To obtain a business records order like the one the administration obtained, the Patriot Act requires the government to prove to a special federal court, known as a Fisa court, that it is complying with specific guidelines set by the attorney general and that the information sought is relevant to an authorized investigation. Intentionally targeting US citizens is prohibited.
Technically, the administration's actions were lawful insofar as they were done pursuant to an order from the Fisa court. But based on the scope of the released order, both the administration and the Fisa court are relying on an unbounded interpretation of the act that Congress never intended.
The released Fisa order requires daily productions of the details of every call that every American makes, as well as calls made by foreigners to or from the United States. Congress intended to allow the intelligence communities to access targeted information for specific investigations. How can every call that every American makes or receives be relevant to a specific investigation?
This is well beyond what the Patriot Act allows.
President Obama's claim that "this is the most transparent administration in history" has once again proven false. In fact, it appears that no administration has ever peered more closely or intimately into the lives of innocent Americans. The president should immediately direct his administration to stop abusing the US constitution.
We all know the saying "eternal vigilance is the price of liberty." We are seeing that truth demonstrated once again.
Our liberties are secure only so long as we are prepared to defend them. I and many other members of Congress intend to take immediate action to ensure that such abuses are not repeated.
View online: here