Patriot Act Architect Criticizes NSA's Data Collection

Audie Cornish talks with Republican Congressman Jim Sensenbrenner. Rep. Sensenbrenner, a key architect of the 2001 Patriot Act, has recently criticized the National Security Agency's data collecting practices following this summer's leaks regarding the scope of the agency's programs.

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AUDIE CORNISH, HOST:

On this side of the Atlantic, the debate over the Snowden leaks and the NSA data sweeps have revealed renewed civil liberties concerns and criticism of the Patriot Act. A key provision of the act known as Section 215 allows investigators to seek business records or, quote, "any tangible things as long as they are relevant to a counter terror investigation." It's a mile-wide definition and the legal foundation that the Obama administration has used to justify its mass collection of Americans' phone logs.

Now there is a movement in Congress to tighten the definition and curb the reach of these surveillance programs. And while privacy advocates have long criticized the law, they've gained an unlikely ally in House Republican Jim Sensenbrenner of Wisconsin, a primary author and long-time defender of the Patriot Act. Congressman Jim Sensenbrenner, welcome to the program.

REPRESENTATIVE JIM SENSENBRENNER: Thanks for having me.

CORNISH: Much of this debate is hinged on the word relevant, right? This is the standard that intelligence agencies have to meet in order to say that the data they want to collect is relevant to the investigation, and the FISA court over the years has come to consider whole databases essentially fair game. But when you helped author the provisions in the Patriot Act that deal with this, what did you intend?

SENSENBRENNER: What Congress intended and what I intended is that the target had to be a foreign national and not a U.S. person. He would be targeted, and then they would find out who that person was calling, both in the United States and elsewhere, rather than grabbing all of the phone information and working backwards to the target. The relevant standard was intended to limit what NSA could do. They took the position that it expanded it. And that tips the commonsense definition of relevance on its head.

CORNISH: Now, some of the most staunch defenders of this law and of what the NSA doing have been members of Congress. Here's New York Republican and House Intelligence Committee member Peter King. He was responding to criticism of the latest NSA revelation, an - a government audit showing that there were thousands of minor privacy breaches over the last few years. Here he is.

REPRESENTATIVE PETER KING: To me, a scandal is when a government agency is somehow using information to hurt people, to go after them. Whatever mistakes were made were inadvertent. And if you have a 99.99 percent batting average, that's better than most media people do, most politicians do. And I have a tremendous respect for General Alexander and the NSA. And this whole tone of snooping and spying that we use, I think it's horrible. It's really a distortion and a smear and a slander of good. patriotic Americans.

CORNISH: And that was Representative Peter King on "Fox News Sunday." Congressman Sensenbrenner, your response.

SENSENBRENNER: Well, I don't think 99.99 percent is good enough when you have a court ruling a program unconstitutional in violating the Fourth Amendment and that program had been going on for many months and the NSA violating court orders. It's the court that is supposed to protect the constitutional rights of Americans. I think that James Madison did a pretty good job when he put together the Bill of Rights. I view the Bill of Rights as a sacred document and one of the documents that makes America so much more different than any other country in the history of the world.

CORNISH: Turning to the Obama administration for a moment here. They, in their white paper, their memo that they released with their legal rationale for this, argue that the data collection is lawful. As we noted, it's approved by the FISA court and is limited in purpose and doesn't involve content. They also argue that they essentially need the entire haystack to find the needle, so to speak, that they need all this data in order to find the people who may have connections to terror. You don't buy that argument.

SENSENBRENNER: I don't buy that argument at all. All I can say is is that even though the Russians told us that the Tsarnaev brothers were potential terrorists, they never used the NSA apparently to track them back before this horror that occurred at the time of the Boston Marathon. The more records you have, the more likely it is that you can't find what you're looking for. What 215 tried to do is say, know who you're looking for first and then see who that person is in contact with. The NSA apparently believed that that was too much work for them.

CORNISH: Are you dealing now with civil libertarians who say that they told you so, that they were right, that this law could be easily abused?

SENSENBRENNER: In some cases, yes. But I think the civil libertarians who had complained about the Patriot Act all along now realize that if there are to be major changes in the Patriot Act and in NSA operations, and that will include a change in the FISA law and a change in how the FISA court operates, they are going to have to broaden their base with others of us who are concerned about the abuses that have taken place. You know, I guess what the NSA has done is misplace both Congress' trust and the public's trust. And they are an agency out of control.

CORNISH: Congressman Sensenbrenner, back in 2006, you defended the Patriot Act, saying that it did have many civil liberty safeguards in it. Looking back now, do you think that that wasn't the case?

SENSENBRENNER: I think we've put many additional civil liberty safeguards in it, particularly with respect to national security letters, which the Bush administration was using extensively instead of Section 215. I don't think we put enough civil liberty safeguards in it. I am committed to putting more in it and making sure that the oversight both by the FISA court and by the Congress is more vigorous, more adequate and will prevent something like this from happening ever again.

CORNISH: Congressman Jim Sensenbrenner of Wisconsin, thank you so much for speaking with us.

SENSENBRENNER: Thank you very much.

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