The Shameless Revisionism of James Sensenbrenner: Georgetown Law Center Edition

By Benjamin Wittes
Wednesday, November 20, 2013, 2:10 PM

I have previously vented a bit of spleen at Rep. James Sensenbrenner---the former House Judiciary Committee chairman who helped write the Patriot Act---for his CYA behavior with respect to bulk metadata collection conducted under Section 215 of that law. But this time, the man has really outdone himself. Yesterday, having earlier complained to the European Parliament about the surveillance policies of his country, he found himself speaking at an event at Georgetown Law Center (video available here). Around 20 minutes into the event, a questioner asked him---far more politely than I would have---about the administration's claims that "in the reenactment of the PATRIOT Act [it had] provid[ed] to the congressmen, in secret, the information necessary to understand that there was now a different intent for section 215." Sensenbrenner responded, in part, as follows: 

I have limited my participation in secret briefings. And the reason I have done that---and I’ve been in Congress a long time, as Senator Leahy has been as well---is [that] usually in these classified briefing, we find out stuff that was in either the Washington Post or the New York Times in the previous days. And this was an attempt by the intelligence community basically to shut us up as members of Congress, because if we disclosed any of that information which was already in the public record and was in a publicly-available newspaper, we could be prosecuted for breaking our oath to secrecy and committing a felony. And I’m not going to get myself involved in that. Early in my career, I was shut up on something and I’ve gotten to the "fool me twice, shame on me" type of thing. What I can say, however, is that when I was the chairman of the Judiciary Committee, Mr. Conyers, who was my ranking member and successor as Chairman, and I sent twice-a-year oversight letters to the Justice Department. If they were not responsive, we acted like crabby professors and said you got an incomplete and go and try it again and be responsive to our questions, and we then put up the non-classified part of the answers up on the committees website jointly. This was bipartisanship at work. Period. After I left, the vigorous oversight ceased, and it ended up that the two intelligence committees ended up being cheerleaders for what the Justice Department and the NSA wanted, rather than providing the oversight that was necessary. And now we are paying the price as a country for it. And we are going to have to change the law to stop this from happening again.

That's right. The former chairman of the House Judiciary Committee, asked about the information available to him about a key piece of legislation, has proudly proclaimed, as though it were a defense, that he refused to do his job. Both as chairman and as a member of the Judiciary Committee, he helped create and sustain a legal regime that he now opposes as a civil liberties violation yet declined to take advantage of the many opportunities given members of his committee to know what they were talking about when voting on this provision and its reauthorization. He refused to know what he was voting on because because to getting briefings would have required him to keep quiet about what he learned. So instead, he legislated blind---and, of course, he asks his audience to congratulate him on that willful blindness by calling it "oversight."

There are two possibilities here. The first is that Sensenbrenner is lying, that he was reasonably well aware of how Section 215 was being implemented over a long period of time and that he is now running for cover. The second possibility is that Sensenbrenner is telling the truth, and that we have legislators in this country who prefer to vote ignorantly on important national security matters than to be briefed on them. I can only hope the former---that he is lying---is the reality.