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The congressman who wrote the Patriot Act said he never intended for the snooping law to be used to grab millions of records in a government fishing expedition like the secret court-approved Verizon phone-records search revealed in news reports this week.
Stung by the Verizon revelations, a number of lawmakers came forward Thursday to say they never intended the laws they wrote following the Sept. 11 terrorist attacks to be used to go after records as broadly as the Obama administration appears to be doing.
Rep. F. James Sensenbrenner Jr., who was chairman of the House Judiciary Committee in the days after the Sept. 11 attacks and wrote the Patriot Act, said using a secret court to gain access to phone records without a subpoena was “excessive and un-American.”
“I do not believe the released [secret court] order is consistent with the requirements of the Patriot Act,” Mr. Sensenbrenner wrote in a letter to Attorney General Eric H. Holder Jr. “How could the phone records of so many innocent Americans be relevant to an authorized investigation as required by the act?”
Since first taking office in 2009, the Obama administration has repeatedly extended the USA PATRIOT Act, including the overbroad section 215 cited as the basis for the FBI surveillance approved by the secret order disclosed by the Guardian. In light of Congress’ recent decision to extend the law permitting even worse abuses by the NSA for another five years, and the Supreme Court’s outrageous decision in Clapper v. Amnesty Int’l turning a blind eye to dragnet domestic surveillance, the document is also a clarion call for both mass outrage and immediate congressional action for long overdue sunlight at the National Security Agency
Along with Senator Mark Udall (D-CO), Sen. Wyden has suggested in his capacity as a member of the Senate Intelligence Committee that Americans would be outraged if we knew about secret government interpretations of the PATRIOT Act’s controversial Section 215 authority. The law is bad enough without being contorted to allow surveillance even beyond its meager limits, but that’s exactly what the document leaked to the Guardian demonstrates: a single wiretap order allowing the FBI to spy on millions of law-abiding Americans at once, without even a pretense of the individualized suspicion long required by the Constitution.
First what little we do know about the NSA’s program is mostly gleaned from government whistleblowers, courageous individuals who have designed their careers to inform the public about secret abuses of our rights.
Many of them have faced prosecution, at unprecedented levels under the Obama administration, making even the Nixon administration look transparent by comparison. But the crackdown on whistleblowers is what enables abuses like the NSA’s to happen in the first place.
And keep your eyes open for whatever investigation the Justice Department will launch into this leak, compounding its assault on the Associated Press with a witch hunt to uncover the source of the leak to the Guardian.
The constitutional standing doctrine articulated by the Supreme Court in Clapper vs. Amnesty International eviscerates judicial review, and enshrined the principle that the executive branch can commit any abuse under the sun, yet evade judicial review, as long as it does so in secret. The decision creates perverse incentives and could serve as a cornerstone in the further entrenchment of executive power going forward.
Similarly, the sheer breadth of the leaked order authorizing FBI surveillance confirms the inadequacy of secret courts. Courts exist to enforce our rights in the face of government abuses. That’s one of the central geniuses of the founding fathers and the system of checks and balances they constructed.