Left in Washington during the 16-day government shutdown, U.S. Rep. F,. James Sensenbrenner took the time to work on two important projects that likely will be equally controversial as they develop in coming weeks.
Visiting the fifth Congressional District on Friday, the Republican congressman shared information on some of his upcoming legislation during a stop at the Daily Jefferson County Union office. He also offered his views on the shutdown (see a related story, "Rep. Sensenbrenner says Obamacare not ready for prime time," on page 3 of today's Daily Union).
Sensenbrenner authored the original Patriot Act and previously chaired the House Judiciary Committee. He has been critical of the broad powers of the National Security Agency revealed by documents released earlier this summer.
“All the revelations to what the National Security Agency (NSA) has been doing, in my opinion, are shocking,” Sensenbrenner said. “Orwell’s novel ‘1984’ has come to the United States with the type of data that is being collected by the NSA.”
As the author of the Patriot Act, the congressman said the data-collection provisions were designed for the NSA and the U.S. attorney general to go to the Foreign Intelligence Surveillance Court (FISA court) and get an order targeting a foreigner, meaning someone who is not a U.S. citizen or green card holder and is involved in terrorist activity. The intent of the order was to find out who that individual is in contact with either overseas or here in the United States.
Sensenbrenner said the idea was finding a target and then taking it from that point.
The representative said he sent some direct oversight letters to ensure that was what was being done and nothing more.
“The Justice Department and NSA did not use this type of dragnet until I left as chairperson of the Judiciary Committee,” he said.
Under current policy, the government is able to gather the metadata from every telephone call made or received by someone in the United States or that goes through some type of American-owned switching company or satellites.
“That was never intended by the Patriot Act and, in my opinion, it doesn’t work,” Sensenbrenner said.
Sensenbrenner said he did not know about the NSA collecting the metadata until he read about it in the newspaper like everyone else.
He noted that NSA officials, including National Security Agency chief Gen. Keith Alexander, say there have been a relatively small number of matches made with all of the metadata. No statistics are available as to how many domestic terrorist plots have been averted as a result of getting the information.
“The fact is they didn’t use this information with the Tsarnaev brothers, who the Russians had told us were bad guys before they set the bombs off at the Boston Marathon,” Sensenbrenner said. “Even though they were told who the needle was in this very large haystack with records of trillions of phone calls that are being made, they were really not spotted as a potential terrorist strike until after the tragedy occurred.”
The congressman noted that it was a department store surveillance camera that identified the suspects, and the public assisted in tracking the two down.
“What is being done is unnecessary by the NSA and I think it is a gross invasion of privacy and has to be stopped,” Sensenbrenner said.
In response, he has been working on a piece of legislation that he hopes to introduce formally in the next two weeks called the United and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet Collection and Online Monitoring Act — or the USA Freedom Act.
The government shutdown allowed his staff and others to work out the bugs and draft the legislation as tightly as possible. The bill will be matched by a similar proposal from Senate Judiciary Committee Chairperson Patrick Leahy, D-Vermont.
“This will be bipartisan and involve both the Senate and the House of Representatives,” he said.
The purpose of the joint proposal is to rein in the dragnet collection of data by the NSA and other government agencies, increase transparency of the FISA court, provide businesses with the ability to release information regarding FISA requests and create an independent constitutional advocate to argue cases before the FISA court.
Sensenbrenner noted that first, the bill would tighten Section 215 of the Patriot Act to limit the collection of business records such as telephone metadata.
“Phone companies have records of who calls who among their subscribers and it goes back to targeting somebody and finding out who that person is in contact with,” he said, noting that the NSA can get a court order for the phone company to disclose those records.
Further, the congressman said, the bill would increase the transparency of actions by the FISA court, which was created by the Intelligence Reform Act of 1978. It was designed to provide better oversight over the intelligence community after the revelations of what they were doing during the war in Vietnam and civil wars in Central America.
“Essentially what the court and the two intelligent communities were supposed to do was to put the brake on NSA accesses,” he said. “What has happened is that instead of putting the brakes on, they have stepped on the gas.”
Sensenbrenner said the bill would create an Office of the Special Advocate tasked with representing privacy interests of the public, who will have standing to appear before the court and argue.
“I think this will help the court do its job better,” he said. “Judges are chosen to listen to arguments on both sides and then apply the facts and the law.”
With the FISA court, Sensenbrenner said, it is only the Justice Department representing the NSA that presents petitions to the FISA court.
“They never hear anything on the other side and the judges actually become policymakers or people who are doing oversight rather than what judges are supposed to do,” he said.
FISA court judges are regular federal judges serving in districts around the country.
“The bill also says when there is a change in policy such as the change in policy in targeting communications of a foreigner we know is involved in potential terrorist activity to grabbing everybody’s phone calls, the FISA court will have to make those policy changes public,” Sensenbrenner said. “I think that’s important because that way, this could have been nipped in the bud if it weren’t for this court being able to make this huge change in secret.”
Lastly, the congressman noted that when he was chairperson of the Judiciary Committee, the FBI and NSA used a 1986 law on business records called the National Security Letter Law to get away from the reporting laws on National Security letters.
Sensenbrenner said the Freedom Act tightens up those reporting requirements.
“At least there would be some transparency,” he said.
In addition, Sensenbrenner said, the opportunity to appeal a very broadly-based National Security Letter is included.
“I think what we’ve done here would have prevented the abuses we didn’t know about from taking place and would stop them in the future,” the congressman said.
Voting Rights Act
Another area on which the congressman will be focusing in coming weeks relates to the U.S. Supreme Court ruling in June against the Voting Rights Act of 1965.
Split along ideological and partisan lines, the justices voted 5-4 to strip the government of its most potent tool to stop voting bias — the requirement in the Voting Rights Act that all or parts of 15 states with a history of discrimination in voting, mainly in the South, get Washington’s approval before changing the way they hold elections.
The decision effectively puts an end to the advance approval requirement that has been used to open up polling places to minority voters in the nearly half-century since it was first enacted in 1965, unless Congress can come up with a new formula that Chief Justice John Roberts said meets “current conditions” in the United States. That seems unlikely to happen any time soon.
Sensenbrenner noted that the Voting Rights Act opened up the political process to minorities when it originally was passed.
“I am working on legislation to fix the Voting Rights Act so it can withstand a constitutional challenge,” the congressman said, adding that he was the author of the extension approved in 2006.
He recalled that at the time, the Judiciary Committee conducted a large number of hearings on whether discrimination still existed.
More than 15,000 pages of testimony were collected suggesting that discrimination still existed in certain jurisdictions. That information was part of the record reviewed by the high court.
Sensenbrenner said it appears that might have been too much material for them. The court said the trigger was an out-of-date formula because it was based on the 1964 election in which very few blacks in the South could register.
“We need to come up with some other means to determine whether there is discrimination and have the Justice Department review election laws, because if the Justice Department doesn’t have a preclearance procedure, there will be all kinds of jurisdictions spending a lot of money on lawyers fees they can’t afford,” he said.
To date, the congressman said, he has a lot of support on both sides of the aisle on the issue. In addition, there are multiple civil rights organizations behind the change, as well.
“In order to get it passed in a Congress that is divided, we’re all going to have to make some compromises,” Sensenbrenner concluded.