The self-identified author of the Patriot Act told an audience at Georgetown University Law School Tuesday that the original law never would have passed if Congress had known how it would be used.
"The Patriot Act never would have passed...had there been any inclination at all it would have authorized bulk collections," Wisconsin Republican Rep. Jim Sensenbrenner said.
After being a forceful defender of the Patriot Act for many years, Sensenbrenner has now joined with Vermont Democratic Senator Patrick Leahy in sponsoring legislation to rein in the government's surveillance powers. Sensenbrenner urged the leadership of both houses to allow the bill to be voted on saying, "I'm willing to bet you that if we get that we'll win."
There are more than a dozen surveillance reform bills in Congress, and as many or more challenges to surveillance law making their way through the courts. Not all of the proposals in Congress would significantly curtail the ability of the National Security Agency to collect communications data, in fact others, such as a bill put forth by Senate intelligence committee chair Dianne Feinstein would explicitly authorize the powers Sensenbrenner and Leahy believe should be narrowed. The real divide between Sensenbrenner and Feinstein is whether the government should be allowed to collect massive amounts of communications data, including that of American citizens, in pursuit of potential security threats.
Robert Litt, counsel to the Office of the Director of National Intelligence, all but endorsed Feinstein's bill Tuesday during a panel following Sensenbrenner's speech. Litt said that "we think there are some changes that could be made" without "unduly compromising the efficacy of the programs." The Feinstein bill, Litt said, is the only one that "we actually think achieves that."
"We do not want to see the metadata collection program go away," Litt said, arguing that the program imposes a "minimal intrusion on privacy."
Litt also took a shot at Sensenbrenner, who acknowledged following his speech that he does not attend classified briefings.
"I'm sorry if members of the judiciary committee don't want to attend classified briefings," Litt said, "but if they want to learn about classified intelligence activities they have to attend classified briefings."
Monday evening, the Obama administration released thousands of pages of documents related to government surveillance programs, which included secret foreign intelligence surveillance court opinions and orders, briefing reports for members of Congress, and internal administration documents. The documents were released in response to a number of Freedom of Information Act lawsuits. While insisting he was releasing the documents in the name of transparency, James Clapper, Director of National Intelligence, also described the documents as "properly classified."
Among those documents were further references to violations of restrictions on NSA surveillance. Those were inadvertent, Litt said Tuesday, and said it would be unfair to characterize those transgressions as "abuses."
"Using the word 'abuse' is like saying the Department of Health and Human Services is abusing people because the website isn't working properly," Litt said, referrring to the troubled rollout of President Obama's landmark health care reform law.
But Jameel Jaffer, an ACLU attorney who was also on the panel, said that less important than whether the NSA broke the rules is what the rules are in the first place. Allowing the NSA to collect so much data would inevitably lead to the data being deliberately misued or being acquired by someone who isn't supposed to have it.
To prove his point, Jaffer cited Edward Snowden, the former NSA contractor whose leaks sparked the controversy over the government's surveillance powers to begin with.
"Here was a person who was able to get the information and make this public," Jaffer said. "This is something the government wanted to protect, and it wasn't able to protect it."
When it comes to surveillance powers, Jaffer said, "you have to take into account not just the possibility, but the certainty that they will be abused in the future."