Rewriting FISA History

[Valin]

NRO:

Representative Sensenbrenner does not appear to have read the law he wrote.

Andrew C. McCarthy

6/22/13

 

Confronted with a few embarrassing assertions in his autobiography, pro-basketball legend Charles Barkley famously protested, I was misquoted. Apparently, Representative James Sensenbrenner knows the feeling. The Wisconsin Republican claims to have written the PATRIOT Act. Like the Round Mound of Rebound, though, he seems less than familiar with his handiwork.

 

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As Ive recounted elsewhere in refuting Sensenbrenners claims, lawmakers also got a good deal of drafting advice from outside the government. That was especially true in 200506, when, largely due to Sensenbrenners insistence at the time of PATRIOTs original passage, several significant provisions were scheduled to sunset. As public debate over the question of reauthorizing PATRIOT heated up, the American Bar Association sponsored exchanges between former government lawyers on the national-security Right, including moi, and our progressive and libertarian counterparts. (See, e.g., this debate between Ohio State law professor Peter Swire and me over the business-records provision eventually published in a 2005 ABA compendium called Patriot Debates: Experts Debate the USA PATRIOT Act.) I was also involved in a bipartisan working group of former government officials who helped lawmakers work through PATRIOT issues. After months of debate, our group (which eventually included future Obama-administration attorney general Eric Holder, as well as several other Clinton- and Bush-administration veterans) came to a consensus about the need to reauthorize several PATRIOT provisions very much including the business-records statute.

 

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Here, it bears emphasizing, much as it pains libertarians to be reminded, that we are talking about information that is not protected by the Fourth Amendment. We are not talking about the constitutional categories (your person, your home, your private papers and personal effects) in which absent a few special needs recognized in our jurisprudence the government may not seize property in the first place. When it comes to those Fourth Amendment categories, the government does not get to say, Well take your property but we promise not to look at it unless we have a good reason. Instead, we are talking about information that is the property of third parties, like phone-usage data maintained by service providers. When it comes to third-party records, the Fourth Amendment allows the government not only to seize but also to scrutinize them without a warrant.

 

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