Oversight

Analysis: How Secrecy Has Already Corroded Our Democracy in Concrete Ways

The renewal of the Patriot Act is a case study in how opaque policy and law destroy a people's ability to self-govern.

August 8, 2013

The Atlantic

This summer, Rep. James Sensenbrenner, an author and longtime champion of the Patriot Act, emerged as one of the most concerned voices arguing that it is being used to violate the rights of Americans. A letter he sent to Attorney General Eric Holder singles out Section 215, the law's "business records" provision. "As the author of the Patriot Act," he wrote, "I am extremely disturbed by what appears to be an overbroad interpretation." He was referring to Edward Snowden's revelation that Team Obama collects data on the phone calls of almost all Americans.

Sensenbrenner began to question whether our constitutional rights are secure. "I do not believe the released FISA order is consistent with the requirements of the Patriot Act," he wrote. "How could the phone records of so many Americans be relevant to an authorized investigation?" His newfound skepticism came as a pleasant surprise to critics of the surveillance state. Two years ago, when key provisions of the Patriot Act were scheduled to sunset, Sensenbrenner proudly and unapologetically lobbied for the re-authorization of the law he helped write. The Congress ought to make provisions including Section 215 permanent, he argued back then. "Section 215 of the Act allows the FISA Court to issue orders granting the government access to business records in foreign intelligence, international terrorism, and clandestine intelligence cases," hesaid. "The USA PATRIOT Improvement and Reauthorization Act of 2005 expanded the safeguards against potential abuse of Section 215 authority, including additional Congressional oversight, procedural protections, application requirements, and judicial review."

Edward Snowden's leaks dramatically altered his perspective. Now he says that if abuses of Section 215 persist, "it will be very difficult to reauthorize these provisions when they sunset in 2015." As yet, Rep. Sensenbrenner hasn't given a full account of what he knew and when. There is, however, a partial explanation in his letter to Eric Holder, where he harkens back to 2011, the year he pressed for Patriot Act re-authorization. Explaining that he "relied on information from the Administration about how the act was interpreted to ensure that abuses had not occurred," he cited Congressional testimony, delivered by Assistant Attorney General Todd Hinnen, saying it left the impression Obama was using Section 215 "sparingly and for specific materials."

That wasn't so.

Congressman Sensenbrenner's conversion is significant in its own right. The Obama Administration claims that Congress has always been "fully briefed" on even the most controversial surveillance activities, and that the NSA acts in accordance with duly enacted laws. What could cast more doubt on that claim than Sensenbrenner, an author and former champion of the legislation, insisting that he is shocked and dismayed by the way it has been interpreted?