Reasonable people can disagree about NSA surveillance in general and about whether Congress should authorize or forbid bulk metadata collection in particular. I have never questioned the good faith of Senators Patrick Leahy, Ron Wyden, or Rand Paul. They are legislators with a perspective. That’s how Congress works.
Rep. James Sensenbrenner is a different matter.
Since the bulk metadata program broke, the former chairman of the House Judiciary Committee has been on a campaign of denunciation of both agency activity under the Patriot Act—the law he helped write. And he has been denouncing the administration for having misled him about how Section 215 is being used too. He has done so with a breathtaking dishonesty that puts him in a different category from those members who have a policy dispute with the administration.
After 9-11, with the country at risk and poised to enter its most intensive conflict since the Vietnam War, Congress extended the administration broader powers to help protect the American people. But the National Security Agency abused that trust.
It ignored restrictions painstakingly crafted by lawmakers and assumed a plenary authority never imagined by Congress. Worse, the NSA has cloaked its operations behind such a thick cloud of secrecy that, even if our trust was restored, Congress and the American people would lack the ability to verify it.
Our constitutional democracy was built to be accountable to the people. That principle can never be compromised.
Earlier this year, Americans were rightly outraged to learn that the NSA is collecting in bulk the phone records of nearly every American.
There are few members of Congress who have less cause to feel misled by the bulk telephony metadata program than does Sensenbrenner—or who have been less candid about the information available to them. Wells and Marcy Wheeler have both written about the letter Sensenbrenner wrote to the attorney general back in June, complaining about the quality of the briefings he received on how Section 215 was being used. In it, he writes:
I insisted upon sunsetting this provision in order to ensure Congress had an opportunity to reassess the impact the provision had on civil liberties. I also closely monitored and relied on testimony from the Administration about how the Act was being interpreted to ensure that abuses had not occurred. On March 9, 2011, Acting Assistant Attorney General Todd Hinnen told the Judiciary Committee:
Section 215 has been used to obtain driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, and the like. It has never been used against a library to obtain circulation records . . . On average we seek and obtain section 215 orders less than 40 times per year.
The Department’s testimony left the Committee with the impression that the Administration was using the business records sparingly and for specific materials. The recently released FISA order, however, could not have been drafted more broadly.
Here’s what Hinnen really said in that testimony—including the portion of the passage Sensenbrenner replaced with an ellipsis in his letter:
Section 215 has been used to obtain driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, and the like. It has never been used against a library to obtain circulation records. Some orders have also been used to support important and highly sensitive intelligence collection operations, on which this committee and others have been separately briefed. On average, we seek and obtain section 215 orders less than 40 times per year. Many of these are cases where FBI investigators need to obtain information that does not fall within the scope of authorities relating to national security letters and are operating in an environment that precludes the use of less secure criminal authorities.
There is some dispute as to how much House members who were not members of the intelligence or judiciary committees really got briefed in 2011 about bulk metadata collection. But Sensenbrenner is not one of those members who has any call to be suggesting he was blindsided by the program. He had access to information about the program though the Judiciary Committee over a long period of time. There are Americans for whom the NSA’s “thick cloud of secrecy” has created a blinding opacity, but Sensenbrenner certainly isn’t one of those. And there are surely Americans who were “outraged” this year “to learn that the NSA is collecting in bulk [their] phone records,” but if Sensenbrenner only learned about it this year, it was because he wasn’t doing his job earlier.
Sensenbrenner, rather, is almost surely something else: A politician who learned this year that the public now knows what he has long known or should have known about how the government was using a law he helped to write. He has been dishonorably protecting himself ever since by feigning ignorance and by sloughing off responsibility for his own policy choices onto others.