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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.
At the House Judiciary Committee hearing today on “Oversight of the Administration’s use of FISA Authorities,” Congressmen Jim Sensenbrenner (R-WI) presented the Committee with the Department of Justice’s (DOJ) response to his June 6th letter to Attorney General Eric Holder regarding the Department’s interpretation and implementation of Section 215 of the Patriot Act as it pertains to the collection of phone records.

The Senate Judiciary Committee held a hearing today entitled “From Selma to Shelby County: Working Together to Restore the Protections of the Voting Rights Act.” Congressmen Jim Sensenbrenner (R-WI) and John Lewis (D-GA) were asked to testify. Congressman Sensenbrenner submitted the following statement:

Good afternoon Chairman Leahy, Ranking Member Grassley and distinguished members of the Committee. Thank you for inviting me to provide my perspective on the continued importance of the Voting Rights Act. I am proud to have served as Chairman of the House Judiciary Committee in 2006 when Congress last reauthorized the VRA.

The VRA is one of the most important pieces of civil rights legislation ever passed and is vital to our commitment to never again permit racial prejudices in our electoral process.  It began a healing process that ameliorated decades of discrimination and helped distinguish a democracy that serves as an example for the world.

Free, fair, and accessible elections are sacrosanct, and the right of every legal voter to cast their ballot must be unassailable. The VRA broke from past attempts to end voter discrimination by requiring federal preclearance of changes to voting laws in areas with documented histories of discrimination. There is no acceptable remedy for an unfair election after the fact.  Section 5 of the VRA was the only federal remedy that could stop discriminatory practices before they affected elections.

That’s why preserving the VRA is so important – it ensures that every citizen has an equal opportunity to participate in our democracy.  Remedial actions can never be fully sufficient for elections, because often what is done cannot be undone, and voices silenced can never be heard.  

In 1982, I helped lead negotiations to reauthorize the VRA.  The legislation cleared the House of Representatives 389-24 and was signed into law by President Reagan.

When he signed the reauthorization, President Reagan said:

“There are differences over how to attain the equality we seek for all our people.  And sometimes amidst all the overblown rhetoric, the differences tend to seem bigger than they are. But actions speak louder than words. This legislation proves our unbending commitment to voting rights. It also proves that differences can be settled in a spirit of good will and good faith.  As I've said before, the right to vote is the crown jewel of American liberties, and we will not see its luster diminished.”

One of my most cherished keepsakes is a pen President Reagan used to sign the 1982 extension. I proudly display it in my office; a symbol of the crown jewel of our liberty.  

The 1982 extension was for 25 years. I believed it was the last time we would need to reauthorize the VRA. But in 2006, while I was Chairman of the House Judiciary Committee, I became convinced the legislation was still needed.  

As Chairman, I held multiple hearings examining the effectiveness of the VRA, whether the VRA should be extended, and if so, what the extension should encompass.  Congress amassed a legislative record that totaled more than 15,000 pages documenting widespread evidence of intentional discrimination.  

In the dissent in Shelby County v. Holder, Justice Ginsburg quoted me as saying that the VRA was “one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 27½ years I served in Congress.”  Had she called me, I would have updated that to 35½ years.

At the conclusion of its effort, Congress’s bipartisan conclusion was that “evidence of continued discrimination clearly show[ed] the continued need for federal oversight.”

Shelby County vs. Holder severely weakened the election protections that both parties have fought to maintain.  The Court disregarded years of work by Congress.  In a 5-4 decision, the Court eliminated the VRA’s formula for determining which areas are covered by section 5. The result is that the preclearance requirement remains, but it no longer applies anywhere except in the handful of locations currently subject to a court order.

The majority’s decision suffers from one glaring oversight:  it fails to account for the bailout procedures in the VRA reauthorization.  Chief Justice Roberts correctly 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 covered areas can bailout of the VRA’s coverage.  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, considered in conjunction with the Act’s bailout procedures, ensures that the Act is 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.  

By striking down Section 4, the Court presented Congress with both a challenge and a historic opportunity.  We are again called to restore the critical protections of the act by crafting a new formula that will cover jurisdictions with recent evidence of discrimination.

Any solution must be bipartisan and must comply with the Supreme Court’s objections.  Fixing the VRA will take time, but I am confident that my colleagues on both sides of the aisle can work together to ensure Americans' most sacred right is protected.

I did not expect my career to include a third reauthorization of the VRA, but I believe it is a necessary challenge.  Voter discrimination still exists, and our progress toward equality should not be mistaken for a final victory.