Rep. Jim Sensenbrenner can take credit for major legislation during his tenure as House Judiciary chairman, but none carries the weight or consequence of the law that will be his legacy: the USA Patriot Act.
"There’s no way I can avoid being remembered for this," the Wisconsin Republican told CQ Roll Call. And, he added, the current situation could have been avoided with proper oversight by Congress. In a May 28 phone interview, Sensenbrenner said he didn't mind, nor did he have regret for his role as lead architect of the post-9/11 law that opened the door to vast levels of government surveillance of U.S. citizens.
He said he didn't think the law or its two reauthorizations could have been written to prevent the National Security Agency from launching its program to collect bulk phone data.
"The Patriot Act has made us safer," Sensenbrenner said without equivocation. "There are dangers in the executive branch abusing power, both the Bush Justice Department and the Obama Justice Department. ... I hope everybody has learned their lesson."
The 71-year-old, 19-term lawmaker spoke to CQ Roll Call as the law faced an uncertain future in the Senate: expiring reauthorization of its surveillance powers and a stalled USA Freedom Act that would ban bulk data collection. Sensenbrenner is a lead sponsor of the Freedom Act.
Some Republican senators argue the Freedom Act goes too far in relaxing counterterrorism initiatives; others claim it doesn't go far enough to curb the NSA.
"I'm not going to point fingers," said Sensenbrenner, regarding who is responsible for the standstill.
But he has plenty of opinions otherwise.
The way he tells it, the Patriot Act was crafted with specific checks and balances. In the days after the Sept. 11, 2001, attacks, Attorney General John Ashcroft sent Congress proposed legislative text. It was "terrible," Sensenbrenner said. He said he helped make the language more palatable, insisting on sunset dates to which President George W. Bush was averse.
Sensenbrenner got his way and later received validation from the president himself. "[Bush] said, 'I underestimated you,'" he recalled with a chuckle.
In the intervening years, Sensenbrenner said he used his Judiciary gavel for oversight of the agencies responsible for Patriot Act implementation. In advance of the sunset dates, he held hearings to determine which provisions should be extended and which should be authorized longer-term.
Three provisions were deemed contentious enough to warrant sunsets as part of the Patriot Act reauthorization of 2006 and again in 2011. During debate on the latter, Sensenbrenner pushed back on critics.
“This law has not trampled on anybody’s civil rights,” he said, “and I’m getting a little bit irritated at the scaremongering."
But by 2013, Edward Snowden's revelations of the bulk data program changed things. Sensenbrenner was dismayed enough to say he never would have supported the law if he knew it would come to this.
"This all boils down to the government's interpretation of 'relevance,' which is different than the dictionary's," Sensenbrenner explained. "When [the 2006 reauthorization] passed, we used the word 'relevant' and thought it was very limiting."
Until Snowden, few knew the NSA received permission to expand the definition of "relevant" to begin collecting, without discrimination, call records. Sensenbrenner said people might have learned about it sooner had Congress been paying attention.
“This was a failure of oversight," he proclaimed. "This was after I left as committee chairman [in 2006] … I ended up being neutered. Departments and agencies have to respond to appropriators and authorizing chairs and maybe ranking members, but they can blow off anybody else."
Sensenbrenner said he wished he had been in position to root it out: "The question would have been asked, 'How [has] putting the word "relevant" in changed your operational procedure?' They could either have told the truth or lied about it. Lying to Congress is a felony, but apparently the Justice Department is never interested in prosecuting itself."
He also called out the House and Senate Intelligence committees for dropping the ball: "They're supposed to get all of the information, and instead what they've done is become cheerleaders for the intelligence community, rather than overseers."
As for what led the Patriot Act to the brink, Sensenbrenner attributed political posturing.
"You’ve got [Rand Paul on] one side, Lindsey Graham on the other side and Ted Cruz in the middle," he said of three GOP senators with presidential aspirations.
He also put some onus on Senate Majority Leader Mitch McConnell, R-Ky., and fellow Senate Republicans.
"The Freedom Act had been a result of two years of negotiations ... with all of the stakeholders except for the Senate Republicans. They were sitting in there. They never made any options to what was negotiated," Sensenbrenner said. "And at the end of it they were asked to sign off and they said 'no.' And they knew it was going on. ... And we told them with the deadline coming up, we could not afford to wait."
Asked to explain such alleged lack of cooperation, he was pointed in his reply.
"They're going to have to answer that question," he said.
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