He gave more surveillance power to U.S. government spies, railed against civil liberties advocates who warned about privacy abuses, and famously shut down a 2005 hearing to silence critics. Now Rep. James Sensenbrenner wants to scale back some of the counterterror laws he once championed, citing an overreach by the National Security Agency that has...
He gave more surveillance power to U.S. government spies, railed against civil liberties advocates who warned about privacy abuses, and famously shut down a 2005 hearing to silence critics. Now Rep. James Sensenbrenner wants to scale back some of the counterterror laws he once championed, citing an overreach by the National Security Agency that has proven him wrong.
Sensenbrenner says he was “appalled and angry” to learn this year that the NSA was sweeping up millions of Americans’ phone records each day. He says that goes far beyond the intent of the 2001 USA Patriot Act, of which he was the chief congressional architect and which was enacted weeks after the 9/11 terror attacks.
Both at home and abroad, anger over the surveillance programs that NSA leaker Edward Snowden revealed in June has given rise to a new round of plans to limit U.S. snooping. But the government is sharply divided over how to assure Americans and the world at large that their private lives are not being invaded while still protecting against terror attacks. It’s likely that lawmakers who oversee competing interests of justice and intelligence issues will end up with a compromise that limits some domestic surveillance.
On Tuesday, Sensenbrenner, R-Wis., and Senate Judiciary Chairman Patrick Leahy, D-Vt., offered legislation to overhaul the NSA. Already, the bill has bipartisan backing in the House and Senate and support from a broad array of support groups that ranges from the National Rifle Association to the American Civil Liberties Union.
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“We have to make a balance between security and civil liberties,” Sensenbrenner said in an interview last week. “And the reason the intelligence community has gotten itself into such trouble is they apparently do not see why civil liberties have got to be protected.”
That’s a turnabout of sorts for Sensenbrenner, who once accused privacy advocates of “exaggeration and hyperbole” for raising alarms of government spying when the Patriot Act was re-authorized in 2006. He maintains that the government should have some, limited, authority to spy on terror suspects, and disputes that his view of surveillance powers has evolved over the years.
“He was really convinced, I think unfortunately at this point, that the intelligence community was not going to misuse this authority,” said Caroline Fredrickson, president of the American Constitution Society for Law and Policy, who during the 2006 debate was Washington director of the ACLU. “And I think perhaps some of his temper now can be explained by the fact that they really proved him wrong.”
Two NSA programs that aim to intercept terrorist messages are at the heart of the push for an overhaul of U.S. surveillance, which has revealed a split between two congressional committees that oversee either judiciary issues or the intelligence community. The Obama administration is waiting to see what Congress does before it offers its own overhaul plans, although it is reviewing U.S. intelligence programs in the wake of the NSA controversy.
The first NSA program collects telephone records and the other sweeps up Internet traffic and email by the millions, if not the billions. Both target only foreign suspects outside the United States and are not supposed to look at the content of conversations or messages by American citizens.
But both programs have raised sharp concerns about whether the U.S. is improperly — or even illegally — snooping on people at home and abroad.
Last month, documents released as part of a civil liberties lawsuit showed that NSA analysts for nearly three years accessed data on thousands of U.S. phone numbers they shouldn’t have, and then misrepresented their actions to a secret spy court to reauthorize the government’s surveillance program. Separately, the NSA’s inspector general reported 12 cases in which officers and analysts with access to the spying systems intentionally abused them, usually to monitor their lovers’ phone calls.
It’s unclear whether the telephone surveillance program has detected many, if any, terror threats. In Senate testimony earlier this month, the NSA director, Gen. Keith Alexander, said the phone surveillance has stopped only one or two cases of terror activity out of about a dozen threats directed at the U.S.
With such limited evidence showing why the telephone surveillance is important, congressional aides in both the House and Senate predict that lawmakers ultimately will eliminate it — but continue sweeping up Internet traffic and email. That could be a politically attractive compromise for both Congress and the Obama administration as each seeks to soothe outrage over the phone spying both at home and abroad.
But it also would leave in place a powerful anti-terror tool that critics say could be even more intrusive than the telephone program. And the congressional intelligence committees are almost certain to fight most limits to telephone data-gathering, opting instead for more oversight and transparency of the process.
Sensenbrenner and Leahy’s overhaul bill also would do that, in part by allowing a privacy watchdog to appeal orders to spy by a secret court, and also require the Justice Department to report more details about what the programs are doing. But, most significantly, the legislation would end the bulk collection of millions of telephone records and force the government to only seek those of foreigners who are targets of terrorist investigations.
“This is the difference between using a rifle shot to get the phone records of somebody that we have great suspicion is involved in terrorist activity rather than using a blunderbuss to grab the whole haystack and to try to find the needle in it,” Sensenbrenner said.
Leahy, who has for years criticized some of the government’s toughest anti-terror measures, acknowledged in a statement that his partnership with Sensenbrenner “may not seem like an obvious team.” But he said the broad agreement between Democrats and Republicans to roll back surveillance authorities shows “it is time for serious and meaningful reforms so we can restore confidence in our intelligence community.”
“Modest transparency and oversight provisions are not enough,” he said.
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