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When this week's big showdown over the Patriot Act was finally behind him, Jim Sensenbrenner could savor the kind of victory that doesn't come along too often in a polarized, party-line political world.

His two-year push to rein in the government's mass surveillance program cleared its final hurdle Tuesday with the support of two-thirds of the U.S. Senate. President Obama signed the legislation immediately.

"It's not that the President has caved to me or I have caved to the President," said Sensenbrenner, the Wisconsin Republican and prime mover behind the first major revisions to the Patriot Act since its passage in the aftermath of the Sept. 11, 2001, terrorist attacks.

"We both realized there was a problem that had to be fixed. And we worked together to fix it," Sensenbrenner said in an interview Wednesday.

Along the way, the Menomonee Falls congressman helped build a coalition that crossed partisan and right-left lines, ranging from tea party conservatives to civil liberties Democrats.

Large bipartisan majorities on hot-button issues are rare these days. In the House, roughly 80 percent of lawmakers in both parties voted last month for the Sensenbrenner bill, known as the USA Freedom Act.

By the end, the bill's supporters included Obama, House Speaker John Boehner, Senate Democrat Elizabeth Warren of Massachusetts and Senate Republican Ted Cruz of Texas. Among Wisconsin lawmakers, they included Democrat Gwen Moore of Milwaukee and Republican Paul Ryan of Janesville.

Whatever one thinks of the law, it was an unusual legislative feat.

The Patriot Act reforms adopted this week have been attributed in part to a new generation of more libertarian Republicans elected to Congress years after the terrorist attacks.

But the law's chief sponsor – Sensenbrenner – has been in office since 1979. He's the second-longest serving Republican and fourth longest-serving member of the U.S. House.

Sensenbrenner was also the chief author of the original Patriot Act, which made him an effective advocate for changing it.

"Institutional memory is essential," he said.

Of any legislative victory he has played a major part in, Sensenbrenner called this one the "hardest to accomplish," because the others (including the 2001 Patriot Act) began with a built-in base of support in Congress and the public.

This one started "with nothing," he said.

After the revelations two years ago by Edward Snowden about the National Security Agency's "bulk" surveillance program, Sensenbrenner argued publicly that it overstepped the language of the Patriot Act. The government was collecting en masse Americans' domestic call records – not the conversations, but the record of what numbers were being called, and the time, date and duration of calls.

The Wisconsin Republican told conservative talk show host Sean Hannity last week that the NSA surveillance was "an intrusion to privacy of a scale no one imagined."

'The dominoes fell'

In 2013, Sensenbrenner began a long process of outreach and negotiation with telecommunication companies, the intelligence community, the White House, privacy and civil liberties groups, and colleagues in both parties and both chambers. He said he told telecom and digital companies that the program would damage them with customers, especially in Western Europe, where the surveillance was highly unpopular. Pressure from tech companies, he said, was a way to influence the White House on the issue.

Sensenbrenner worked closely with a small circle of House members and senators from both parties and both ends of the political spectrum to draft the bill. Boehner was persuaded to get behind it. Obama gave a speech in early 2014 promising new restrictions on data collection.

"The dominoes fell one by one," said Sensenbrenner.

In early May, a federal court ruling declaring the surveillance program illegal provided more momentum. After the House passed the measure overwhelmingly last month, the most powerful opponent was Senate Majority Leader Mitch McConnell, backed by a cadre of security-minded GOP senators.

Sensenbrenner said that while McConnell's opposition was no surprise, the "depth of his opposition" was. But the majority leader never had the votes to extend the Patriot Act unchanged and was outmaneuvered in his own chamber.

"He miscalculated where the public was and where his colleagues were," Sensenbrenner said.

Keeping balance

All along, Sensenbrenner argued that his bill was the sweet spot between privacy and security, and upsetting that equilibrium would doom it. All along, the bill had critics on opposite sides of the debate, those who said it sacrificed security (like Senate Republican John McCain of Arizona) and those who said it sacrificed privacy (like Wisconsin's Tammy Baldwin, the only Senate Democrat to vote against it).

"You make the perfect the enemy of the good, then nothing happens, which is one of the reasons I think we have a lot of gridlock around here. I am absolutely convinced that what we passed was the best that was pass-able and sign-able," said Sensenbrenner, who acknowledged if he could impose a law "by decree" he would have included more privacy safeguards in the bill.

Gov. Scott Walker, a fellow Wisconsin Republican and likely presidential candidate, surprised Sensenbrenner with his public opposition to the legislation, suggesting it would cost the U.S. an important tool for tracking potential terrorists.

"I would respond to the governor and others who have been saying that, (that) the bulk collection (of domestic phone records) has been going on for nine years now and the threat has increased rather than decreased," Sensenbrenner said. "And if there hasn't been any evidence that has been submitted that the bulk collection stopped anything, then what's the beef?"

Sensenbrenner said one huge legislative lesson is the leverage gained from including "sunsets" – expiration dates. The provision used by the NSA as the basis for its mass surveillance program was one of three in the Patriot Act with sunset clauses, requiring renewal. Sensenbrenner's original Patriot Act was criticized as overreaching by civil liberties advocates. But the lawmaker also was responsible for including the sunsets, and that leverage made this week's changes to the Patriot Act possible.

"If we ever had the need demonstrated on how useful sunsets are, this is it," said Sensenbrenner.

Sensenbrenner said he thinks Americans have shifted and become more privacy conscious compared to the climate that was created more than a decade ago by the 2001 attacks.

"You have more libertarian Republicans ...And you've got more civil liberties-minded Democrats that are concerned about that," he said, citing how technology has made privacy concerns about personal communication more tangible for everyone, especially young people.

In his last re-election race, the 71-year-old Sensenbrenner distributed posters on college campuses touting his bill to revise the Patriot Act and restrict NSA surveillance.

The posters proclaimed, "The GOVERNMENT knows what you did LAST NIGHT!" and declared in smaller type: "The NSA has grabbed your phone calls, texts, Facebook posts and emails. Jim Sensenbrenner thinks that is an outrageous invasion of your privacy."

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Congressional negotiators are scrambling over the Memorial Day recess to rustle up the votes required to pass legislation to rein in the National Security Agency's bulk collection of phone records but preserve the government's domestic surveillance program. This race against the clock would never have become necessary — and shouldn't have — but for a group of senators intent on scuttling sensible legislation authored by U.S. Rep. Jim Sensenbrenner (R-Wis.).

Sensenbrenner's USA Freedom Act would end the government's massive eavesdropping program revealed two years ago by whistle-blower Edward Snowden. His bill overwhelmingly passed the House but fell three votes short of the 60 needed for passage last week in the Senate. Sen. Rand Paul (R-Ky.), whose hours-long monologue on Friday made passage impossible, wants to go farther: He has vowed to block reauthorization of the bill until the Senate votes to end the section of the Patriot Act used by the NSA to justify the dragnet of phone records.

But Paul, a presidential candidate who has used his filibustering to raise funds for his campaign, is wrong. The better course (though less lucrative for his campaign) would have been simple support for Sensenbrenner's bill.

It strengthens privacy and civil liberty protection, but still gives intelligence authorities the tools they need to protect Americans. The bill would not allow the NSA to sweep up records as it has done in the past but would require phone companies to hold the records, which the NSA could access with a search warrant.

The Patriot Act's Section 215 expires Monday, which forced Senate Majority Leader Mitch McConnell (R-Ky.) to call for a rare Sunday session this week for a vote on any compromise deal. The House also may have to act on Sunday.

As with too many issues in the nation's Capitol, a handful of lawmakers are holding up a very good bill that solves a problem. We agree with U.S. Rep. Devin Nunes, a California Republican and chairman of the House Intelligence Committee:

"This whole argument is just a circus act, and it's just unfortunate," he said. "We've wasted a considerable amount of legislative time, both in the House and the Senate, on something that is really trivial. This is a program that is very important but very seldom used."

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By a vote of 57-42, the bipartisan USA FREEDOM Act failed to reach the 60-vote threshold to advance in the Senate. Following the Senate’s rejection of the USA FREEDOM Act, House Judiciary Committee Chairman Bob Goodlatte (R-Va.), House Judiciary Committee Ranking Member John Conyers (D-Mich.), Crime, Terrorism, Homeland Security, and Investigations Subcommittee Chairman Jim Sensenbrenner (R-Wis.), and Courts, Intellectual Property and the Internet Ranking Member Jerrold Nadler (D-N.Y.) issued the following joint statement:

“The Senate’s rejection of the USA FREEDOM Act, a bipartisan bill that overwhelmingly passed in the House of Representatives, misses an opportunity to protect our civil liberties while also maintaining our national security. The USA FREEDOM Act is a carefully crafted compromise that has earned the support of the White House, the intelligence community, privacy and civil liberties advocates, private industry, Republicans and Democrats, and most importantly the American people.

“The USA FREEDOM Act, which the House passed 338-88, ends bulk collection of data, increases transparency, and prevents government overreach. The bill preserves key intelligence-gathering authorities while prohibiting bulk collection under Section 215, consistent with the Second Circuit Court of Appeals’ decision. Section 215 would remain a valuable counterterrorism tool for the FBI and a targeted call detail records authority would replace the NSA’s current, unlawful program.

“Because the Senate has rejected the USA FREEDOM Act, Section 215—and the NSA’s bulk collection program that some in the Senate are trying to preserve—will now expire before the House reconvenes on the evening of June 1.  The Senate has failed to make the important reforms necessary, jeopardizing Americans’ civil liberties and our national security.”

Congressman Jim Sensenbrenner (R-Wis.): “Senator Burr’s proposal to plug the so-called “holes” in the USA FREEDOM Act is dead-on-arrival in the House.  His bill is not stronger on national security, it is just much weaker on civil liberties. This is nothing more than a last-ditch effort to kill the USA FREEDOM Act, which passed the House 338-88.  If the Senate coalesces around this approach, the result will be the expiration of important authorities needed to keep our country safe.”

  • USA FREEDOM’s six month transition period was proposed by the NSA.  Just this week, NSA Director Mike Rogers wrote that the time period was adequate.  There is absolutely no reason to extend a program recently ruled illegal by the Second Circuit for an additional two years.
  • The Amicus provisions in USA FREEDOM are entirely discretionary.  These provisions will not cause harmful operational delays.
  • The latest controversy proves the value of sunsets.  Now would be the worst time to make these provisions permanent. 
Congressman Jim Sensenbrenner: “Wisconsin exports nearly $24 billion worth of merchandise including manufactured goods and agricultural products and $6 billion in services including business, technical, insurance and travel services.  Free, Fair and Effective trade agreements to sell American products overseas will lead to economic growth and help us build a more healthy economy. Other countries want to trade with us because we respect our agreements, their people and intellectual property rights.  America remains the beacon on the hill and promoting trade means that we can lift the standards around the world and level the playing field for America—rather than letting Chinese and Russian regimes set the norms.  I therefore urge Congress to support Trade Promotion Authority and look forward to reviewing pending agreements.”

Today, House Judiciary Committee Chairman Bob Goodlatte (R-Va.), House Judiciary Committee Ranking Member John Conyers (D-Mich.), Crime, Terrorism, Homeland Security, and Investigations Subcommittee Chairman Jim Sensenbrenner (R-Wis.), and Courts, Intellectual Property and the Internet Ranking Member Jerrold Nadler (D-N.Y.) issued the following statement urging the Senate to pass the USA FREEDOM Act of 2015.

“The House of Representatives passed the USA FREEDOM Act last week by an overwhelming, bipartisan vote of 338-88.  If the Senate rejects the USA FREEDOM Act, Section 215—and likely the NSA program that some in the Senate are trying to preserve—will expire before we reconvene on the evening of June 1.

“The USA FREEDOM Act protects Americans’ civil liberties and enhances our national security. It ends bulk collection of data, increases transparency, and prevents government overreach.  The bill also preserves key intelligence-gathering authorities.  Section 215 will remain a valuable counterterrorism tool for the FBI and a targeted call detail records authority will replace the NSA’s current, unlawful program.

“If Section 215 is allowed to expire, these tools will simply disappear.  The Senate will have blocked reform at great cost to the intelligence community. The USA FREEDOM Act is the only option that does not lead down that path.  We once again urge the Senate to take up and pass the USA Freedom Act without delay.”

Correcting the Record on Section 215

Myth:  Congress can act on June 1st to reauthorize or amend Section 215.

Fact:   Three provisions of the Patriot Act, including Section 215, are set to expire at midnight on May 31, before the House is back in session. According to the Congressional Research Service, ‘absent any reauthorization, beginning at 12:00 AM in the morning of June 1, 2015, §§ 501 and 502 of FISA would read as they read on October 25, 2001.’  Moreover, the current FISA court order authorizing the NSA’s bulk telephone metadata program expires on June 1 at 5:00 p.m.

Myth:  The USA FREEDOM Act reverts our intelligence-gathering programs to a pre-9/11 posture.

Fact:   The USA FREEDOM Act enacts sweeping reforms to surveillance programs – ending bulk collection, creating a panel of experts at the FISA court, and mandating transparency – but the bill also preserves key authorities.  Section 215 will remain a valuable counterterrorism tool for the FBI.  A targeted, narrowly-tailored call detail records authority will replace the NSA’s current, unlawful program. Additionally, the USA FREEDOM Act enhances national security by providing targeted tools to keep America safe.

Myth:  A brief sunset of Section 215 and other authorities under the Patriot Act is a mere technicality. 

Fact:   If the Senate chooses to allow these authorities to expire, they should do so knowing that sunset may be permanent. The USA FREEDOM Act has earned the support of the White House, the intelligence community, privacy and civil liberties advocates, and private industry.  Nearly every member of the House of Representatives demands reform to these authorities.  No such coalition exists for a clean reenactment of Section 215. 

Two years ago, Americans received the shocking news that the U.S. government is collecting records of every single phone call we make. To justify this bulk collection program, the National Security Agency (NSA) relied on a blatant misinterpretation of Section 215 of the PATRIOT Act.

As the author of the PATRIOT Act, I can assure you that the bill never intended such an invasion of the privacy of innocent Americans. Earlier this week, the Second Circuit Court of Appeals decision confirmed what I’ve been saying since the program was revealed—bulk collection is illegal.

On Wednesday, the House of Representatives overwhelmingly passed the USA FREEDOM Act by a vote of 338-88. This bipartisan bill, which I introduced, bans bulk collection. By reining in the Administration’s surveillance abilities and increasing transparency, the bill improves privacy protections for American citizens. It also creates more targeted and effective surveillance tools, making our nation safer.

Backed by a wide spectrum of supporters, from civil libertarians to national security hawks, the USA FREEDOM Act strikes the delicate balance between preserving privacy rights and protecting our country from terrorist threats. With key provisions of the PATRIOT Act set to expire June 1, 2015, this bill is the most responsible path forward.

It is now up to the Senate to move quickly to pass the USA FREEDOM Act. I urge my colleagues in the Senate to stand up for civil liberties and national security by adopting these important reforms.




View Congressman Sensenbrenner’s Floor Statement, here

House Judiciary Committee Chairman Bob Goodlatte (R-Va.), House Judiciary Committee Ranking Member John Conyers (D-Mich.), Crime, Terrorism, Homeland Security and Investigations Subcommittee Chairman Jim Sensenbrenner (R-Wis.), Courts, Intellectual Property and the Internet Subcommittee Ranking Member Jerrold Nadler (D-N.Y.), Senator Mike Lee (R-Utah), and Senate Judiciary Committee Ranking Member Patrick Leahy (D-Vt.) issued the following statement Thursday urging the Senate to take up and pass the USA FREEDOM Act of 2015:

“Republicans and Democrats in the House and Senate have come together in support of historic legislation that protects Americans’ privacy rights and our national security.  The House took an important step this week by overwhelmingly approving the USA FREEDOM Act by a vote of 338-88. The Senate should do the same.  The USA FREEDOM Act is a carefully crafted compromise that has the support of the intelligence community, technology industry, and privacy groups.  For this reason, we will not agree to any extension of the NSA’s bulk collection program, which has already been ruled unlawful by the Second Circuit Court of Appeals.  The Senate should not delay reform again this year.  Instead, the Senate should immediately pass the USA FREEDOM Act.”

Learn more about the USA FREEDOM Act by clicking here.

The House of Representatives today approved by a vote of 338-88 the USA Freedom Act (H.R. 2048). This bipartisan bill – introduced by Crime, Terrorism, Homeland Security, and Investigations Subcommittee Chairman Jim Sensenbrenner (R-Wis.), House Judiciary Committee Chairman Bob Goodlatte (R-Va.), Ranking Member John Conyers (D-Mich.), and Courts, Intellectual Property and the Internet Subcommittee Ranking Member Jerrold Nadler (D-N.Y.), reforms our nation’s intelligence-gathering programs operated under the Foreign Intelligence Surveillance Act (FISA). Section 215 of the Patriot Act, along with two other provisions, are set to expire at the end of the month. 

The USA Freedom Act expands upon the civil liberties protections contained in the bill approved by the House of Representatives last year. It ends bulk collection of data, strengthens protections for civil liberties, increases transparency, and prevents government overreach, while also enhancing national security. The bill is supported by a broad coalition of civil liberties advocates and technology groups, and has been vetted by national security agencies. It also has the support of President Obama.

Crime Subcommittee Chairman Sensenbrenner, Chairman Goodlatte, Ranking Member Conyers, and Courts, Intellectual Property and the Internet Subcommittee Ranking Member Nadler praised today’s vote in the joint statement below. 
 
“The American people have told Congress loud and clear that we need to rein in our nation’s surveillance programs and today the House of Representatives listened to them by passing the USA Freedom Act. This strong, bipartisan bill contains the most sweeping set of reforms to government surveillance practices in nearly 40 years. The USA Freedom Act ends bulk collection once and for all, enhances civil liberties protections, increases transparency for both American businesses and the government, and provides national security officials targeted tools to keep America safe.

“In light of last week’s ruling by the Second Circuit Court of Appeals that the government’s bulk collection program exceeds what is authorized under Section 215 of the Patriot Act, the Senate should waste no time defending a program that has been ruled unlawful and take up the USA Freedom Act as soon as possible.”

Key Components of the USA Freedom Act:

Protects civil liberties: 
• Ends bulk collection: Prohibits bulk collection of ALL records under Section 215 of the PATRIOT Act, the FISA pen register authority, and national security letter statutes.
• Prevents government overreach: The bulk collection prohibition is strengthened by prohibiting large-scale, indiscriminate collection, such as all records from an entire state, city, or zip code. 
• Allows challenges of national security letter gag orders:  NSL nondisclosure orders must be based upon a danger to national security or interference with an investigation. Codifies procedures for individual companies to challenge nondisclosure orders.  Requires periodic review of nondisclosure orders to determine necessity.

Improves transparency and better information-sharing with the American people:
• Expertise at the FISA court:  The bill creates a panel of amicus curie at the FISA court to provide guidance on matters of privacy and civil liberties, communications technology, and other technical or legal matters.
• Declassified FISA opinions: All significant constructions or interpretations of law by the FISA court must be made public.  These include all significant interpretations of the definition of “specific selection term,” the concept at the heart of the ban on bulk collection.
• Robust government reporting: The Attorney General and the Director of National Intelligence will provide the public with detailed information about how they use these national security authorities.
• Robust company reporting:  Tech companies will have a range of options for describing how they respond to national security orders, all consistent with national security needs.  

Strengthens national security:
• Gives the government the tools it needs:  Creates a new call detail records program that is closely overseen by the FISA court.
• Contains an additional tool to combat ISIS:  The bill closes a loophole in current law that requires the government to stop tracking foreign terrorists when they enter the U.S. This provision gives the government 72 hours to track foreign terrorists when they initially enter the United States (it does not apply to U.S. persons) – enough time for the government to obtain the proper authority under U.S. law.
• Increases the statutory maximum prison sentence to 20 years for providing material support or resources to a designated foreign terrorist organization. 
• Enhances investigations of international proliferation of weapons of mass destruction.
• Protects United States’ maritime activities from nuclear threats, weapons of mass destruction, and other threats by implementing the obligations of various treaties to which the United States is a party.
• Provides strictly limited emergency authorities:  Creates new procedures for the emergency use of Section 215 but requires the government to destroy the information it collects if a FISA court application is denied.

Learn more about the USA Freedom Act by clicking here.