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By Jim Sensenbrenner

Published August 19, 2013


On Aug. 9, the Obama administration released a previously secret legal interpretation of the Patriot Act that it used to justify the bulk collection of every American's phone records. The strained reasoning in the 22-page memo won't survive long in public light, which is itself one of the strongest arguments for transparency in government. As the late Supreme Court Justice Louis Brandeis wrote, "Sunlight is said to be the best of disinfectants."

Recent revelations by the Washington Post emphasize the need for greater transparency. The National Security Agency failed to report privacy violations that are serious infringements of constitutional rights. Beyond these blatant violations, the foundation of the programs is itself illegal.

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. Since first learning of the program this spring, I have been a vocal critic of such dragnet collection as a gross invasion of privacy and a violation of Section 215.

The administration's memo begins by acknowledging 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 legal definition grew out of case law related to grand jury subpoenas and civil discovery. In these areas, courts have adopted a somewhat broader concept of relevance, finding that documents can be relevant not only when they directly bear on the subject matter at hand but also when they could reasonably lead to other information that directly bears on that subject matter. Think of it as second-degree relevance.

The memo correctly points out that Congress was familiar with this legal standard when it adopted the Patriot Act and therefore intentionally invoked this legal interpretation when passing the act. That's true as far as it goes, but the administration's bulk-collection program goes far beyond this broader definition of relevance. The phone records of innocent Americans do not relate to terrorism, and they are not reasonably likely to lead to information that relates to terrorism. Put simply, the phone calls we make to our friends, families and business associates are private and have nothing to do with terrorism or the government's efforts to stop it.

The arguments to the contrary are not compelling. As the administration explains it, 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 our private connections contained in the bulk data are only of value if they in some way relate to terrorism. To the extent they don't, the government has no right to collect them. The government may need the haystack to find the needle, but gathering the haystack without knowledge that it contains the needle is precisely what the relevance standard and Section 215 are supposed to prevent.

Although the secret FISA court has gone along with this, no public court has ever upheld document collection that is remotely close to the dragnet at issue. The administration concedes as much: "To be sure, the cases that have been decided in these contexts do not involve collection of data on the scale at issue in the telephony metadata collection program, and the purpose for which information was sought in these cases was not as expansive in scope as a nationwide intelligence collection effort designed to identify terrorist threats."

The administration therefore admits that its bulk collection is unprecedented, but it nonetheless has the audacity to argue that because Congress knew of the more limited civil and criminal concepts of relevance, it should have known it was authorizing bulk collection under the Patriot Act. Why would the existence of a more limited definition put Congress on notice that it was sanctioning a more expansive view?

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. This last point deserves to be quoted in full:

"Moreover, information concerning the use of Section 215 to collect telephony metadata in bulk was made available to all members of Congress, and Congress reauthorized Section 215 without change after this information was provided. It is significant to the legal analysis of the statute that Congress was on notice of this activity and of the source of its legal authority when the statute was reauthorized."

As I have said numerous times, I did not know the administration was using the Patriot Act for bulk collection, and neither did a majority of my colleagues. Regardless, 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.

Rep. Jim Sensenbrenner (R-Wis.) has been a member of Congress since 1978 and is the former chairman of the House Judiciary Committee. He is the primary author the Patriot Act.

View online: here.
Congressman Jim Sensenbrenner (R-WI) introduced the Business Activity Tax Simplification Act (BATSA) today, which would limit state attempts to collect taxes from out-of-state businesses and codify the physical presence standard for state taxation of business activities.  

Congressman Sensenbrenner: “Per the Supreme Court, the Commerce Clause forbids states from levying taxes against individuals who lack a “substantial nexus” with the state. But the Court left many states unsure about what constitutes a “substantial nexus” and the extent of their ability to levy certain taxes on out-of-state businesses.

“This bipartisan bill aims to clear up what the Court left vague and ripe for misinterpretation. Some states have misconstrued their authority to levy business activity taxes, which has resulted in uncertainty for small businesses and state governments alike. BATSA resolves the existing ambiguity by establishing a clear and concise rule for when a sufficient connection exists to justify taxation.”  

The Voting Rights Act (VRA) is one of the most important pieces of civil rights legislation ever passed. It began a healing process that ameliorated decades of discrimination and is vital to our commitment to never again permit racial prejudices in our electoral process.

At a time of social upheaval and political inequality, the VRA helped distinguish America as the world's premier example of democracy. Free, fair and accessible elections are sacrosanct, and the right of every legal voter to cast their ballot must be unassailable. In contrast to past attempts to end discrimination, the VRA required federal preclearance of changes to voting laws in areas with histories of discrimination. Section 5 of the VRA was the only federal remedy that could stop discriminatory practices before they impacted elections.

Prior to the 2006 reauthorization, the Judiciary Committees held multiple hearings examining the VRA. Congress amassed a legislative record of over 15,000 pages, documenting invidious discrimination and demonstrating "the continued need for federal oversight."

In Shelby County v. Holder, the Supreme Court severely weakened the VRA's election protections. In a 5-4 decision, it eliminated the formula for determining which areas are covered by section 5. The result is that preclearance requirements remain, but only apply in the handful of locations subject to a court order.

The ruling suffers from one glaring oversight: it fails to account for the bailout procedures in the VRA reauthorization. Chief Justice Roberts recognized that the VRA "employed extraordinary measures to address an extraordinary problem." But while the majority chastised Congress for failing to update Section 4's coverage formula, it ignored the fact that, far from punishing areas for distant history, any covered jurisdiction could bailout of coverage by demonstrating a 10-year period without discrimination. The coverage formula, coupled with the act's bailout procedures, ensures a fluid and current response to discrimination. The very fact that these jurisdictions have not bailed out is evidence that the VRA's "extraordinary measures" are still necessary.

The Court's decision ensured increased litigation. The prohibitions against voter discrimination are still intact, and state and local governments will have to defend against more such litigation. While the Court struck down Congress's coverage formula, courts still have the ability to "bail-in" jurisdictions to the VRA's preclearance procedures if they find evidence of discrimination. The Department of Justice has already announced it will pursue such coverage in Texas.

By striking down Section 4, the Court presented Congress with both a challenge and a historic opportunity. While it is too early to say how to best restore the formula struck down by the Court, any solution must be politically palatable and comply with the Court's interpretation of the Constitution. It will require extensive legal expertise and political input as this is not an easy puzzle to solve.

Voter discrimination still exists, and our progress toward equality should not be mistaken for a victory.
President Obama invited the principal author of the Patriot Act, Congressman Jim Sensenbrenner (R-WI), Senators Ron Wyden (D-OR), Mark Udall (D-CO), Dick Durbin (D-Il), Dianne Feinstein (D-CA), Saxby Chambliss (R-GA), House Judiciary Chairman Bob Goodlatte (R-VA), House Intel Chairman Mike Rogers (R-MI) and Ranking Member Dutch Ruppersberger (D-MD) to a meeting in the Oval Office today to discuss National Security. 

Congressman Sensenbrenner: “It is becoming increasingly apparent the balance between security and liberty has been tainted. Amidst public outcry, the President invited members from both sides of the debate to discuss this important issue. The conversation was productive and everyone agreed something must be done. 

“Washington must ensure our homeland is protected, as is our right to privacy. Therefore, following the August recess, I intend to introduce legislation to ensure Section 215 of the Patriot Act is properly interpreted and implemented. The bill will ensure the dragnet collection of data by the NSA is reined in, safeguards are established to significantly increase the transparency of the FISA Court and protections are put in place for businesses who work with the government.
   
“As a result of the meeting at the White House, I was unable to cast my vote on H.R. 1582, the Energy Consumers Relief Act. If I were present, I would have voted in support of ensuring greater transparency and oversight of the EPA, and am extremely pleased it passed the House.” 
The House of Representatives passed H.R. 1911 on Thursday, May 23, with the support of Congressman Sensenbrenner (R-WI). This bill would link the base interest rate to the 10-year Treasury Note. All outstanding loans would reset to the current 10-year Treasury Note rate once per year.  And upon or subsequent to graduation, students could consolidate and lock in fixed rates for the life of their loans.

On July 24, the Senate incorporated a substitute amendment by Senators Manchin (D-WV) and Burr (R-NC). The House of Representatives passed H.R. 1911, the Bipartisan Student Loan Certainty Act, as amended by the Senate, yesterday with the support of Congressman Sensenbrenner.  

“This legislation is a step toward fiscal stability and helps students relying on loans to further their education. House Republicans recognize the additional stress our struggling economy is putting on graduates, especially those with student debt. This bill would prevent student interest rates from doubling this fall and provide a permanent fix to the student loan program while protecting taxpayers by not adding to the deficit. It’s unfortunate Democrats held up this effort, but I am glad to see the House approve a bill with the proper urgency to move from a plan dictated by politics to one that is market-based.”


By Representative Sensenbrenner

Published July 23, 2013


In early June, leaked documents revealed that the U.S. government was collecting the details of virtually every call that every American made. President Barack Obama claimed that the PATRIOT Act gave him the authority to know whom we called, when and how long we talked.

This claim came from the same man who, as a senator, wrote, “We believe the government should be required to convince a judge that the records they are seeking have some connection to a suspected terrorist or spy.”

It appears the president now believes we are all connected to terrorists. It’s as if he’s playing Six Degrees of Kevin Bacon with our civil liberties.

Congress passed the PATRIOT Act in 2001 after a vociferous public debate. To protect against abuses, the act was scheduled to sunset — it would expire if Congress did not renew it after five years.

When it was reauthorized in 2006, Congress sought to limit the government’s warrantless access to records. Under the revised law, the government can obtain records if a court determines they are relevant to an authorized investigation into international terrorism or foreign spying.

But in a secret policy decision handed down by a secret court, the government reinterpreted the relevance requirement as an expansion of power rather than a limitation.

How can every call that every American makes be relevant? The answer is: They can’t. At a hearing before the House Judiciary Committee, FBI Director Robert Mueller argued that the administration’s request for all foreign and domestic phone records was relevant because the database of all those calls includes relevant information.

This expansive characterization of relevance makes a mockery of the legal standard. According to the administration, everything is relevant provided something is relevant. Congress intended the standard to mean what it says: The records requested must be reasonably believed to be associated with international terrorism or spying. To argue otherwise renders the standard meaningless.

In a July 16 letter, the Department of Justice offered a different interpretation of relevance. DOJ argued that, while the National Security Administration collects everyone’s phone records, it accesses only those records when it believes they are associated with terrorism. Under this procedure, however, it is the NSA rather than a court that determines what is relevant. This is inconsistent with what the PATRIOT Act requires.

The Obama administration has now charged seven people with leaking information under the Espionage Act. Prior to his administration, the act had been used only three times since 1917. To my knowledge, the president has never charged, or even reprimanded, anyone in his administration for perjury.

And misinformation has been rife. In March, Sen. Ron Wyden asked Director of National Intelligence James Clapper if the NSA collected “any type of data at all on millions or hundreds of millions of Americans?” Clapper, under oath, said no.

When the NSA’s surveillance programs first became public, Clapper said he responded in the “least untruthful” way possible. He later apologized, conceded his answer was erroneous, and said, “I simply didn’t think of Section 215 of the PATRIOT Act.” The problem is that Sen. Wyden had warned Clapper in advance that he would ask the question, and Clapper’s staff privately acknowledged to Wyden that the DNI’s response was false. So Clapper likely lied in his apology for lying.

Can we blame Americans for losing faith in their government?

In 2011, then Acting Assistant Attorney General for National Security Todd Hinnen testified to a House Judiciary subcommittee: “This authority [Section 215 of the PATRIOT Act] allows the government to obtain under FISA in a national security investigation the same types of records that can be obtained by a grand jury subpoena in an ordinary criminal investigation, though unlike a grand jury subpoena, it requires an order from the FISA Court.”

The clear implication of Hinnen’s testimony was that the authority under the PATRIOT Act is more limited than the government’s authority in a criminal investigation. Except it isn’t.

In criminal cases, courts have held that large sets of information do not meet a relevance standard because they would necessarily include nonrelevant records. This was the legal standard Congress invoked when it passed the PATRIOT Act. As acting assistant attorney general for national security, Hinnen would have known that the administration and the FISA Court had secretly redefined the term relevance in the national security context, but he nonetheless drew a misleading parallel to the criminal standard.

The government needs to have the ability to keep sensitive investigations secret, but secret laws are anathema to democracy. Public debate of a law is a charade if the government can secretly reinterpret the law without scrutiny.

This is how freedom is lost — bit by bit, one secret decision at a time, out of necessity or for some higher purpose that we later come to regret. Such abuses must be reined in, and no false trade-off between freedom and security should be allowed to be decided behind closed doors ever again.

View online: Politico
The white Wisconsin lawyer and the black preacher from Georgia strode into the Senate hearing room together and took their seats, shoulder-to-shoulder, at the witness table. Veteran lawmakers and experts in civil rights law, they had been here before.

Republican Rep. Jim Sensenbrenner and Democratic Rep. John Lewis are men of a certain age and experience amid a Congress marked by a bitter aversion to working together. Though political and temperamental opposites, they have paired up for decades on one of the nation's most painful issues— racial politics — and won overwhelming bipartisan passage when they have sought to reauthorize the Voting Rights Act.

This time it's Sensenbrenner's third rewrite of the 1965 law and Lewis' second. The Supreme Court's decision to gut the product of their partnership has called them together again, but the odds of successfully persuading their colleagues to rewrite the law once again aren't clear.

"This is going to be a little harder," Sensenbrenner said Wednesday after the Senate Judiciary Committee hearing and the day before a House session. "It's uncharted waters."

"If anyone on the other side of the aisle can bring people to the table and get it done, this man can do it," Lewis said of Sensenbrenner in a telephone interview Wednesday night. "He is tireless. And he will not take 'no' for an answer."

Influential House Republicans, such as Speaker John Boehner, aren't saying much of anything about the prospects for a bill to pass the GOP-led House. So with time ticking toward the 2014 elections and the Republicans eager to draw support from blacks and Hispanics, who overwhelmingly vote for Democrats, Sensenbrenner and Lewis are laying the groundwork for their case. They testified Wednesday before the Senate. A House panel opened its own hearing Thursday, with Judiciary Committee Chairman Bob Goodlatte making no commitment to a new bill, but pointing out that the justices let stand other anti-discrimination provisions in the law.

The Supreme Court voted 5-4 last month to effectively halt the enforcement provisions of the Voting Rights Act, enacted to outlaw racial discrimination against voters in local, state and federal elections. Some entire states and counties were subjected to special federal enforcement, with requirements to get approval in advance before they could make even minor changes to voting laws.

Lawmakers extended the provisions in 1970, 1975 and 1982, and in 2006, Congress voted overwhelmingly to keep them for another 25 years. Sensenbrenner and Lewis were central figures in the two most recent reauthorizations. The Wisconsin Republican said Wednesday the research he amassed during the 2006 rewrite, as chairman of the House Judiciary Committee, amounted to 15,000 pages.

The Supreme Court decision, striking as outdated the so-called preclearance provision, means that a host of state and local laws in covered jurisdictions now can take effect without Justice Department approval. Prominent among those are voter identification laws in Alabama and Mississippi. The other covered states are Alaska, Arizona, Georgia, Louisiana, South Carolina, Texas and Virginia. Certain counties in California, Florida, New York, North Carolina and South Dakota, and some local jurisdictions in Michigan, are included.

Enforcement coverage has been triggered by discrimination not only against blacks, but also against American Indians, Asian-Americans, Alaska Natives and Hispanics.

Under the law, jurisdictions can break away from federal oversight if they show a clean record on voting rights for 10 years.

That drew Lewis and Sensenbrenner together again on the same subject, but in a very different political climate.

"The Supreme Court said it's an obligation of Congress to do this. That's a command of a separate but co-equal branch of government," said Sensenbrenner, 70. A new law, he said, should be passed before the congressional elections. He added that House GOP leaders are open to the prospect but they have to see a draft first, it must address the court's objections and it must be "politically acceptable" in the House and Senate.

"The American people expect us to roll up our sleeves and get to work," Lewis, 73, said at the same Senate hearing.

That's a tall order in an age of divided government and scorched-earth partisanship that faded, for now, only a day earlier when the Senate struck a deal to avert a ban on some filibusters. Democrats control the presidency and the Senate, while Republicans have the House majority.

More broadly, the Voting Rights Act hearings come at a tense time for race relations. The nation is grappling with the acquittal this week of George Zimmerman in the shooting of unarmed teen Trayvon Martin. President Barack Obama, the country's first black president, has reacted cautiously to the Florida jury's verdict.

And politically, Republicans are struggling with immigration reform in their bid to appeal to Hispanics and other voters who turned out overwhelmingly for Democrats in last year's elections. So rewriting a part of the Voting Rights Act is sensitive for the GOP in advance of the 2014 congressional elections.

But Sensenbrenner and Lewis are resuming their well-practiced roles.

"I try to be a mechanic, to put together legislation that will work," Sensenbrenner told the Senate panel. "We're going to have to repair a few parts this year."

Lewis, who was beaten during a civil rights march in Alabama during the 1960s and forgave an attacker, says he tries to provide a sense of history and inspiration. At one point during Wednesday's hearing, Lewis looked to his left at Sensenbrenner.

"I am very proud and pleased to be with him today. My friend, my brother," Lewis said.

View online: here.