- The Washington Times - Friday, September 6, 2013

The chief author of the Patriot Act has filed court papers in support of a lawsuit seeking to stop the National Security Agency’s bulk collection of records, saying that the Obama administration is going far beyond what he intended when he wrote the law in the wake of the Sept. 11, 2001, attacks on New York and the Pentagon.

Rep. F. James Sensenbrenner Jr., Wisconsin Republican and chief sponsor of the Patriot Act, filed a amicus curiae brief on Wednesday saying he was misled about the scope of snooping the government intended to use the Patriot Act for, and said he would not have backed reauthorizing key parts of the law if he had known about it.

“This misinterpretation of the law threatens our First, Second and Fourth Amendment rights,” Mr. Sensenbrenner said in a statement after he filed his legal brief. “Congress never intended this. I will rein in the abuse of both the Patriot Act and the U.S. Constitution with the support of the American public.”

His brief raises serious separation of powers questions over how far the president can stretch a law beyond what Congress specifically intended.

Mr. Sensenbrenner filed in support of a lawsuit by the American Civil Liberties Union, which is seeking to halt the NSA’s records collection. The National Rifle Association has also filed an amicus brief challenging the Obama administration’s actions.

Mr. Sensenbrenner said Section 215 of the act, which granted the government the ability to collect records from companies, was meant to apply only when the government thought the records were important to a specific investigation.

The NSA has interpreted the section to mean it can demand and store years’ worth of data about phone calls, and later go back and look at the relevant data as part of investigations.

In its own court filing last month, the government said a secret court has already upheld the program as justified by Section 215. And the Justice Department argued that the law is quite broad in what it allows.

“Courts in each of these contexts have categorically authorized the production of entire repositories of records, even when any particular record is unlikely to bear directly on the matter being investigated, where searching a large volume of information is the only feasible means of locating much smaller amounts of critical information within the data that directly bears on the matter under investigation,” the administration said.

Mr. Sensenbrenner countered that that amounts to a “dragnet” of Americans’ records and said it had “frightening implications.”

In his lawsuit, he said Congress “required that the records sought be relevant to ‘an authorized investigation,’ rather than relevant to general or omnibus efforts to combat terrorism. Congress thus required intelligence agencies to establish a specific link between the records sought and a specific, individual investigation.”

Mr. Sensenbrenner said the government’s interpretation that every phone call is relevant to terrorism investigations could lead to authorities saying every gun sale is also relevant — and to begin building a database of gun owners.

The Patriot Act passed in 2001, but some provisions, including the records collection section, were considered so touchy that they were set to expire unless Congress reauthorized them.

Congress did so in 2006, 2009 and 2011.

The government argues that even if Congress didn’t mean for such a broad collection of records, they tacitly approved it by reauthorizing the law even though the government had submitted a secret report to Capitol Hill explaining they interpreted their authority that broadly.

Mr. Sensenbrenner, though, rejected that “implied congressional ratification,” saying the report itself was meager and wasn’t available to all House members when they voted to reauthorize the Patriot Act in 2011. He said for all basic purposes, the administration kept its interpretation of the law secret, so Congress couldn’t have been validating it by its votes.