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Congressman Sensenbrenner Is Wrong on Patriot Act Records

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.