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Congressman Sensenbrenner Is Wrong on Patriot Act Records

June 12th, 2013 - 7:48 am

Congressman Jim Sensenbrenner is a sensible guy. Nevertheless, the op-ed he has penned in the UK’s Guardian newspaper, in reaction to revelations that the Defense Department’s National Security Agency has been collecting telephone usage “metadata” on millions of Americans, is rife with error.

Metadata, we have come to learn, is not the content of telephone conversations (i.e., what is said by the interlocutors) but dry record information about the calls that service providers maintain (basically, time and duration of the call, as well as the subscriber phone numbers involved). This is an important distinction because, while the content of our communications is considered private and is protected by the Fourth Amendment and exacting federal statutes, telephone usage records are not private. Indeed, by nature, they are not the phone user’s records at all, they are owned and kept by third-party service providers. As a result, they do not have constitutional protection and have always been rather freely available to criminal investigators and prosecutors.

The Patriot Act, enacted shortly after the 9/11 attacks, was largely an effort to give national security agents the same sort of investigative powers law-enforcement agents had been exercising for decades. It is under Patriot’s business records provision – Section 215, which is codified in the U.S. Code in Section 1861 of Title 50 – that the metadata collection has occurred.

That is to say, the metadata collection is not new. It started in the Bush administration. Yet, Rep. Sensenbrenner shrieks that “the Obama administration is collecting records of every call made to, from or within the US, as well as records of many digital communications.” In making this claim, he conflates the NSA revelations with other, genuine Obama administration scandals: Sensenbrenner’s description of the massive metadata collection comes only after recounting “the Obama administration’s policing of the press and the IRS’s targeting of conservative groups,” and he heaps the whole mess together under the rubric of “‘Big Brother is watching.’”

This is very foolish. The Obama administration’s abuses of power – not only in the IRS witch-hunts against the president’s political opponents and the spying on the press, but the Benghazi derelictions, the Fast & Furious debacle, new revelations of State Department obstruction of investigations of its personnel, etc. – are authentic scandals involving serious, authoritarian overreach, stonewalling, and probably criminal offenses. They are also unilateral executive branch malfeasance.

By contrast, the NSA’s national security activities (the metadata collection and the “PRISM” program involving eavesdropping targeted at non-Americans) involve longstanding, bipartisan efforts, legitimately pursued under federal laws that prescribe multiple layers of judicial and congressional oversight. By lumping the NSA in with the true Obama scandals, and by falsely portraying it as solely an Obama administration activity, Republicans risk losing the public’s interest in the real abuses of power. Once the facts of the NSA controversy are better understood, people may well conclude that if Republicans politicized the NSA issue just to stick it to the president, maybe they are politicizing everything else, too. The long-overdue opportunity to hold this most corrupt administration accountable will, yet again, be lost.

Rep. Sensenbrenner goes on (a) to argue that the NSA’s metadata collection is a violation of the Patriot Act, and (b) to claim special authority to make that pronouncement because, he says, “I authored the Patriot Act.” He is flatly wrong on the first assertion and his claim of authorship is overblown. Lots of people in Congress authored the Patriot Act. Moreover, while I would not claim authorship, I participated in a bipartisan group of former government officials who worked closely with lawmakers in the effort to reauthorize the most significant Patriot Act provisions when they were scheduled to sunset a few years back. I am intimately familiar with the negotiations over the relevant business records section Sensenbrenner addresses, and his description of what it says and why it says it is simply inaccurate.

A little background is in order. The main idea behind the Patriot Act, other than removing barriers to intelligence sharing across government agencies, was to put national security agents (mainly, the FBI’s national security division) on a par with criminal investigators (e.g., the FBI’s criminal division and federal prosecutors) when it came to investigative techniques that the latter had been using for decades.

There was an imperative in this debate that many of my friends on the national security right seem suddenly to have amnesia about: National security is the responsibility of the executive branch, and we vigorously argued that it needed to stay that way – particularly in wartime. The framers did not intend the federal courts to have any role in our national defense.

Of course, progressives, who view counterterrorism primarily as a law-enforcement matter, were determined to use the Patriot Act as an opportunity to institutionalize a counterterrorism paradigm that gave politically unaccountable judges a veto over the executive branch’s wartime actions in America’s defense – notwithstanding that, under our Constitution, the president, in conjunction with Congress, is the political official accountable to the American people for national security. Consequently, a major dynamic of the Patriot Act debate involved progressives fighting for unprecedented judicial participation in national security measures and we on the national security right resisting this advance.

That is part of the necessary framework for understanding the current debate over the business records section. But there is one more salient matter. Again, as noted above, usage records for services, like telephone service, to which a customer subscribes do not belong to the subscriber. They are the property of the service provider. As a result, they have never had any Fourth Amendment protection, and they have precious little statutory protection. Again, we on the national security right wanted this legal reality, long ingrained in routine law-enforcement, to be reflected in national security investigations.

When I was a federal prosecutor, if I wanted phone records for an investigation, I wrote a subpoena and had an agent serve it on the relevant phone company. I did not have to go to court. I did not have to make any showing to a judge that the records were relevant, much less that I had probable cause to believe the customer whose records I wanted was suspected of committing a crime.

If I wanted to install a pen-register – a device placed on a telephone line to record usage, time, and duration of calls, numbers dialed and dialing in, etc. – I would submit an application and short-form order for a judge to sign. Importantly, because (as I explain here) the Supreme Court has held that usage information – again, as opposed to the content of calls – is not protected by the Fourth Amendment, I did not have to prove anything to get the judge to sign the order. I simply had to comply with the federal statute that calls for a prosecutor to represent in good faith that the information sought was relevant to an investigation. If I did that, the judge had to sign the order – the judge did not get to grill me about whether I really needed the pen register. As the executive branch official, that was my call, not the court’s.

It has long been the law that grand juries do not have to suspect a crime in order to conduct an investigation; they can investigate, if they wish, just to satisfy themselves that no crime has been committed. As a practical matter, that never happens. Grand juries, agents, and prosecutors are too busy with real crime to conduct witch-hunts. But the principle involved is important: Under our Constitution, the investigation of crime – the police power – is an executive branch authority.

The federal courts have no business directing investigations, and it is not the role of a judge to tell a prosecutor or an FBI agent what information may be sought. If a category of information is not protected by federal law, the executive branch may compel its production. Period. There is no burden of proof. It is not like the situation when a prosecutor wants to tap your phone or search your house. The law considers your conversations and your personal effects private, and thus law-enforcement may not invade them without getting a judicial eavesdropping or search warrant based on probable cause to suspect crime. Third-party business records do not implicate such concerns or protections.

With that background, the point of the Patriot Act’s business records provision was to put national security agents in a position analogous to that of criminal investigators. As described above, there is virtually no judicial oversight, and no systematic congressional oversight of any kind, regarding the power of law-enforcement officials to compel business records. So what we on the national security right wanted was the exact same power for national security agents.

The reasoning was straightforward: protecting the nation – especially after the mass-murder of nearly 3000 Americans on 9/11 – was a higher executive branch responsibility than, say, prosecuting a drug ring or a mafia gambling operation. If the executive branch did not need to prove anything to a judge to compel business records in connection with run-of-the-mill crime, it made no sense to impose a higher burden in connection with a more important responsibility.

Progressives and libertarians would not agree. They were not happy about the latitude federal law gives criminal investigators, and the Patriot Act debate was their chance to fight back, to sow into national security law the seeds of more judicial oversight. Accomplishing that objective would enable them, later on, to relitigate the battles they’d lost over the years regarding broad investigative authority in the arena of law-enforcement. (Note, for example, that Sen. Rand Paul has proposed legislation that would not only slash the NSA program but cripple law enforcement by imposing unprecedented burdens on the compulsion of third-party phone records. I write about that here.)

This tangle resulted in a compromise: To get business records under the Patriot Act, the FBI would not have to prove anything to the court; as with a pen-register, however, the executive branch would have to make solemn representations that the information was sought for a legitimate purpose – viz., that there were reasonable grounds to believe the records sought were relevant to a national security investigation (i.e., either to obtain foreign intelligence or protect against terrorism or foreign spying).

Nevertheless, Rep. Sensenbrenner writes:

To obtain a business records order like the one the administration obtained, the Patriot Act requires the government to prove to a special federal court, known as a [Foreign Intelligence Surveillance Act (FISA)] court, that it is complying with specific guidelines set by the attorney general and that the information sought is relevant to an authorized investigation. Intentionally targeting US citizens is prohibited.

This is wrong in every particular. The government is not required to prove anything to the FISA court. This was the crux of the debate. If the government had to prove anything to the FISA court, that would mean the FISA court, rather than the executive branch, would have the final say on who could be investigated and what records could be scrutinized.

The government – as the statute says in language that was argued over endlessly – must provide the court with “a statement of facts showing there are reasonable grounds to believe that [the records sought] are relevant to an authorized investigation.” But the statute does not empower the court to second-guess that statement of facts. If the bill had granted this kind of judicial intrusion into executive responsibilities, the national security right would not have supported it, and it would never have been enacted. Instead, the statute provides that if the government makes the stipulated representations, the court must sign the order.

Furthermore, the government need not “prove” to the FISA court “that it is complying with specific guidelines set by the attorney general,” as Sensenbrenner asserts. Instead, guidelines from the attorney general regarding the retention and dissemination of the information sought must be set forth in the application. The executive branch must follow them, and there is no reason to believe agents are not doing so. But there is no requirement to prove to the FISA court that the government is complying. Again, it is a solemn representation, not a proof requirement.

Finally, it is simply not the case, as Sensenbrenner claims, that “intentionally targeting US citizens is prohibited.” The statute provides that information about American citizens may not be targeted if the purpose of the investigation is solely “to obtain foreign intelligence” – and that’s common sense. But, as noted above, the statute also pertains to investigations “to protect against international terrorism or clandestine intelligence activities.” There is no prohibition against targeting American citizens on these scores – which also make sense because, as we know historically, some American citizens have been deeply involved in international terrorism and in helping foreign spy services work against the United States.

Indeed, the statute expressly assumes American citizens will be implicated in investigations. It states: “An investigation … shall … not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States” (emphasis added). That is, the government may not target an American merely for political dissent (as, for example, the Obama administration has done in the IRS scandal). But if, say, an investigation involves international terrorism and there is reason, wholly apart from political dissent, to believe an American’s phone records would be relevant, there is no prohibition against seeking an American’s phone records.

I believe Congressman Sensenbrenner is confusing what he may consider to be – and what may in fact be – an overzealous but entirely legal use of the Patriot Act with a violation of the Patriot Act. To compare, again, the awesome powers of criminal investigators: when I was a prosecutor, I could have compelled the production of phone records of countless innocent people. If I did not have a good reason for doing so, it would have been an abuse of my power. But it would not have been a violation of laws that, quite intentionally, allow the executive branch to compel non-privileged records with virtually no oversight. It would mean we’d need a new, more responsible prosecutor, not new laws.

To the contrary, the Patriot Act provides a comprehensive regimen of internal Justice Department monitoring, judicial oversight, and congressional oversight. It is not true, as Rep. Sensenbrenner contends, that collecting records is the equivalent of spying. Under the procedures in place, the government may retain the records it collects, but it may not scrutinize the data therein unless it goes to the FISA court and demonstrates reasonable suspicion, based on specific facts, of terrorist activities.

So yes, the government is permitted to retain phone records for national security purposes with a fairly minimal burden – although a higher one than the government must meet in investigating ordinary and comparatively trivial crime. But it cannot “spy” without satisfying a court that there are grounds to do so – something it never has to do with business records gathered in criminal investigations.

And, unlike the case in routine criminal investigations, there may very well be a valid reason to collect millions of phone records for national security purposes. It may well be that only by accessing the universe of phone traffic are analysts capable of discerning the complex communication patterns of terrorists who are trained in counterintelligence. That has yet to be established, and it may well be that trying to establish it publicly would educate our enemies in how to avoid detection.

Consequently, we may be at a crossroads. At a time when trust in government is understandably low, we are being asked to trust that government is not using the records it retains to spy on us; that both parties and every branch of government are involved in the process to ensure that such spying does not happen; and that government has a legitimate, life-saving national security purpose for the massive data collection that has taken place over many years.

Whether that trust is warranted is a serious question, and it deserves serious consideration. The inquiry is not advanced by overheated, inaccurate allegations of lawlessness.

Comments are closed.

Top Rated Comments   
I agree with McCarthy -- for national defense purposes, the NSA needs surveillance tools, and the various scandals under Obama shouldn't be lumped together. I think Mark Steyn has argued that it's not so much the laws which are problematic, as it is the people empowered to enforce them (the crooked prosecutor, as McCarthy refers to). Personally, I have zero trust in the Obama administration being granted sweeping, non-transparent "national defense" powers. The remedy may not be to change the laws (handicapping law enforcement), but to sweep this corrupt administration out of office.
1 year ago
1 year ago Link To Comment
I'm sorry but a lot of the arguments made in defense of the NSA operation are rather disingenuous. To a great degree a lot of the very potential for intercepting calls was mandated by the government through the CALEA Act, which REQUIRED all telecoms to change their equipment and procedures so that the government could intercept and tap communications with a minimum of trouble. If internet providers and telecoms wanted to stay in business they had to comply. It was not voluntary. Kind of like requiring that they had to build in the capability of using mobile phones as tracking devices. The mobile phone providers had no use for such a function but the government demanded it, and they got it.

The old axiom regarding the Fourth Amendment is that you have no right to privacy for activities you willingly exhibit to the public. That was the rationale used regarding listening to signals from cordless phones. But at the same time the government strongly resisted allowing manufactures to build in hard encryption capabilities into any such devices. Do you remember the Clipper Chip back in the days of Clinton?

When the government requires you to live in a glass house and makes it illegal to obscure the walls with opaque coverings the notion that you have forfeited all right to privacy by exposing yourself to the public is more than just a little Orwellian.
1 year ago
1 year ago Link To Comment
I used to have a sign over my desk that said: "When the enemy is in range, so are you." In keeping with that maxim I've had lots of conversations with bright young lads and lasses recently appointed to high office about what the other guys could do with that pretty new toy they wanted. This was my great fear about the Patriot Act; what would the Democrats do with it? There is no such thing as a moderate Democrat under the age of 50 or so at the leadership or candidate level. In the solidly Blue places they are openly outright communists though they prefer to be called Progressives. You have to be in your sixties or older now to remember when the open communists referred to their fellow travellers and assets who were in positions where they couldn't be open communists as "progressive" people. In the less solidly Blue places, Democrat operatives and candidates have become really really good at "passing," as the Black folk used to call it. Comrade Obama is a graphic example of "passing." Instead of its oldtime use in describing a light-skinned Negro who could pass for a Caucasian and live in White society, in "post-racial" America, Comrade Obama is a communist apparatchik who can pass as a moderate Democrat. He can pass so well that in addition to having a large number of ordinary citizens fooled, he's still got one Helluva lot of Republican leaders and officeholders fooled.

I've done lots of investigations, taken lots of disciplinary or dismissal actions, and made quite a few referrals for prosecution of government employees for their misuse/abuse of government data and information technologies. I could literally look over someone's shoulder and capture every image and keystroke on the internet and in email. We were once doing a serious investigation of some bad acts involving a union paid agent, a couple of executive board members, and a group of stewards. We were reading all their email, monitoring all their phone contacts, though not the content, and monitoring and often screen capturing all their internet activity on government devices. The funny part was they were often conversing about how the government was probably reading or watching what they were doing but they did it anyway.

I can tell you with absolute certainty that when you put human beings in front of computers with access to confidential or classified information, some significant percentage of them will access that data and sell it, use it against someone, or use it to coerce someone. Where the Patriot Act's provisions have placed us is putting us in the position of having to rely solely on the good intentions of the government, something I reject in any administration but especially in a Democrat administration, or on the courts remaining honest arbiters of truth and law, something they haven't been at the trial court level in a very long time or even at the appellate level in the Blue places.

I actually agree with Mr. McCarthy about the government's powers here and their utility for National defense, but we have two wars going on; one is the war against the US being conducted by foreign powers outside the US, the other is the war against the US as we know it by powers operating inside the US. I always had a lot more trust in the guy I knew was my enemy than in the guy I should be able to trust but wasn't quite sure. I know that the Soros Junta and Comrade Obama's Administration are my enemies. Unfortunately, all too many Americans still think they should be able to trust them.
1 year ago
1 year ago Link To Comment
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All Comments   (23)
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The author has a point that the NSA program was bipartisan, also practiced by bush, although to a lesser degree, and with more careful targeting of requests, instead of this dragnet of everything. He is also right that no abuse of the NSA program has been discovered, YET, other than wondering whether that amount of data should be collected at all. But even if you dont record the conversation, you could still do lots of damage with just call records, for example by knowing somebody talked to or visited a prostitute, or by doing meta analysis to identify an opposing parties network of donors and key supporters just like they did with el quaidas network, for targeting by other agencies, or their own underhanded supporter groups. We have no evidence any of that happened, but that possibility for abuse is there.
And that is where the other scandals do matter. I am not sure this kind of power should be given even to a president I completely trust. But due to the other scandals, we now have a president who has proven he cannot be trusted, which makes giving him this kind of power much worse.
1 year ago
1 year ago Link To Comment
McCarthy -- even if you're a decent guy who challenged the National Review editors re: arming the Al-Heart and Lung Eaters brigades in Syria and Clifford "Muslim Brotherhood" May -- the horse has left the barn door. The families of the dead Navy SEALS have joined the class action lawsuit against Verizon have credible testimony that NSA listened to their phone calls. Why? Because they doubted the official version of their son's death in an Afghanistan helicopter crash?

The NSA or at least 'rogue agents' within the NSA are going to get caught directly passing illegally gathered data to the Barry Hussein regime. And all useful idiots on the Right defending their favorite three letter agencies because the money is so good or they think they're defending us from the Russkies and Chicoms are going to look STUPID.
1 year ago
1 year ago Link To Comment
It very well may be that the NSA operation was merely unamerican and not also illegal. Nobody need go to jail then. American patriots do not support witch hunts and ex post facto law.

But let us not gloss over the fact that it _is_ unamerican. The remedy is to identify who asked for such an overbroad thing, what elected official was responsible for that appointment, so that the direct person may have his position eliminated in the next budget every year until the person leaves federal service (firing in our civil service system being so hard) and the elected official never again serving in a position of public trust for the rest of their lives.

The list would be long, but never fear, we can simply build a database to track it all.
1 year ago
1 year ago Link To Comment
Metadata, we have come to learn, is not the content of telephone conversations (i.e., what is said by the interlocutors) but dry record information about the calls that service providers maintain (basically, time and duration of the call, as well as the subscriber phone numbers involved).
Meta data is simply "data about data". This has been vastly misused. In the example it is data about the call not the call content but it is also NOT simply data about the data. Metadata describes the data storage structure down to a specific data element such as "call start time, call end- time, or calling tele nbr, called tele nbr" and it would include a description of the data element with specific format, ie. time, nbr, amount, text, etc. I am thinking somebody said, "hey Raj, they need our "metadata". And his buddies in Bangalore thought he said "megadata" :)
1 year ago
1 year ago Link To Comment
Questions for Andrew:

1). Did you ever issue a subpoena or submit a warrant application for *all* phone records in your jurisdiction?

2). Could a subpoena for all phone records ever have a legitimate basis? Can you think of an investigation in which it would have been appropriate?

3). Doesn't the Patriot Act allow such warrants and subpoenas only in response to an actual investigation? What is the particular investigation that requires the collection of everyone's records? Do you think a prosecutor could submit a subpoena to Verizon by claiming he is broadly investigating "crime"?
1 year ago
1 year ago Link To Comment
Right now, there are 89000 governments (the census department counts them because we keep losing track). There are cases of official corruption and malfeasance, likely with a higher body count than the terrorists have managed lately. Do we have data monitoring of government activity at a level that is equivalent or greater than the monitoring of the general population? If they do, there does not seem to be much evidence for it. If they do not, why not?

Richard Windsor is probably curious about it. B-)
1 year ago
1 year ago Link To Comment
Almost all terrorism is committed by people with 3 characteristics. Male, Middle Eastern, Muslim. All the authorities need to fight terrorism is use those subsets of humanity.

Instead, we pretend all Americans might be suspects.

With due respect to Mr. McCarthy, I won't sacrifice my right to privacy just because the authorities don't have the guts to politically incorrect.
1 year ago
1 year ago Link To Comment
Exactly. The government's NEED to dissect our communications is a direct result of their failure to secure our borders and suspend immigration after 911. We should have stopped any and all Muslims from entering the country unless there was a very compelling reason to let an individual in. The common thread for terrorists in the US is that they are Muslims. That's it. Its pretty simple.

But that's much too complicated for the worshipers of multi-culturalism to understand. That might involve a conversation with Reality, and in their pantheon Reality corresponds most closely with the Devil in the Judeo-Christian religion. Its not something they would willingly desire to do. Its far easier and morally satisfying for them to sacrifice the rights of their fellow Americans who are never invited to their cocktail parties. Who could possibly care about such people anyway?
1 year ago
1 year ago Link To Comment
This is especially rich coming from one of the few sane voices at NR who argued the U.S. and NATO shouldn't back the Syrian Muslim Brothers while the Foundation for Defense of Democracies's Clifford May put in a good word for the Al-Heart and Lung Eaters brigades.
1 year ago
1 year ago Link To Comment
Andrew McCarthy specifies that prosecution can get call records with a subpoena, but he glosses over the fact the subpoena is for specific records. In these cases it is for all call records. In the former case, McCarthy would have to know what he was looking for. But, in the latter cases, he would be asking all records of all people and I submit that is not covered by FISA or the Patriot Act.
1 year ago
1 year ago Link To Comment
Mr. McCarthy's arguments are re-assuring, as far as they go. So the NSA can legitimately store the metadata on everybody's phone calls. No doubt, that's why they built that huge, $2 Billion facility in Utah to store our metadata, right?

The risk to our freedom is in what we don't know that we don't know. And we learned last week that NSA is collecting much more than phone numbers. Can they, once they decide to look at your phone metadata, also retrieve your actual conversations, which are also just another form of digital data easily subject to capture and storage in Utah? And your emails, Google searches, website accesses, editorial comments (like this)? If targeted, these myriad chunks of data could be used by "investigators" to entrap one into "lying to investigators" or "obstruction of justice", even without evidence of an underlying actual crime (e.g., Martha Stewart).
Of course, our Congress is diligently protecting us....except that the DNI conspicuously (and artlessly) lies to Congress about what he's doing.

Remember, every American commits unwittingly commits several felonies every day (see Harvey Silverglate's book). Just because you're paranoid, doesn't mean somebody at NSA isn't out to get you.
1 year ago
1 year ago Link To Comment
As much as I respect Mr. McCarthy and his contributions to making the US safe, I completely disagree with his stand on this issue. His whole argument aside from legalistic reminders that the 4th amendment has been long ago rendered moot, reminds me of the snake in Disney’s “Jungle Book”. “Trust in me … just trust in me…”

The rationale and defense of mass indiscriminate collection of metadata is that the authorities don’t know where to look; they need the metadata to connect dots. The facts about who had the data and when in every major terror attack in the US gives the lie to that assertion.

In every major successful terrorist strike all of the players were well known before they acted. In every case from 9/11, to Fort Hood, to Boston, the bad actors were known, had telegraphed their intent - and were ignored by the authorities. The CIA, or the FBI, or both, knew all about them and what they were doing. (In the case of Boston - even Russia knew and warned the US about the specific bad actor.) They knew who they were calling and what they were saying. The authorities knew where the bad guys were living; they knew about their associates, their mentors and their training, It wasn’t that they didn’t have the dots - they just didn’t, and in some cases refused, to connect the dots. No amount of metadata will make up for that failure.

We don’t need everyone’s metadata any more than we need to be frisking 80 year old women and two year old kids at the airport while ignoring the 25 year old middle easterner standing behind them. Pick the most obvious potential threat and start there. It will all fall in line.
1 year ago
1 year ago Link To Comment
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