Abusing the Patriot Act. It's what control freak statists like Obama do.

Patriot Act’s author files court papers to stop ‘frightening’ Obama abuses

The chief author of the Patriot Act announced Friday that he's joined 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 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 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 National Security Agency 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 its approach is reasonable.

"Even if collecting telephony metadata involved a Fourth Amendment 'search' (it does not), the Fourth Amendment bars only 'unreasonable' searches and seizures, whereas the collection of metadata at issue here is reasonable under the standard the Supreme Court applies to assess suspicionless searches that serve special government needs," the Justice Department said.

Mr. Sensenbrenner, though, said that amounts to a "dragnet" of Americans' records that has "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.

Mr. Sensenbrenner joined a lawsuit filed 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.

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.

Obama administration had restrictions on NSA reversed in 2011

By Ellen Nakashima, Published: September 7

The Obama administration secretly won permission from a surveillance court in 2011 to reverse restrictions on the National Security Agency’s use of intercepted phone calls and e-mails, permitting the agency to search deliberately for Americans’ communications in its massive databases, according to interviews with government officials and recently declassified material.

In addition, the court extended the length of time that the NSA is allowed to retain intercepted U.S. communications from five years to six years — and more under special circumstances, according to the documents, which include a recently released 2011 opinion by U.S. District Judge John D. Bates, then chief judge of the Foreign Intelligence Surveillance Court.

What had not been previously acknowledged is that the court in 2008 imposed an explicit ban — at the government’s request — on those kinds of searches, that officials in 2011 got the court to lift the bar and that the search authority has been used.

Together the permission to search and to keep data longer expanded the NSA’s authority in significant ways without public debate or any specific authority from Congress. The administration’s assurances rely on legalistic definitions of the term “target” that can be at odds with ordinary English usage. The enlarged authority is part of a fundamental shift in the government’s approach to surveillance: collecting first, and protecting Americans’ privacy later.

“The government says, ‘We’re not targeting U.S. persons,’ ” said Gregory T. Nojeim, senior counsel at the Center for Democracy and Technology. “But then they never say, ‘We turn around and deliberately search for Americans’ records in what we took from the wire.’ That, to me, is not so different from targeting Americans at the outset.”

The court decision allowed the NSA “to query the vast majority” of its e-mail and phone call databases using the e-mail addresses and phone numbers of Americans and legal residents without a warrant, according to Bates’s opinion.

The queries must be “reasonably likely to yield foreign intelligence information.” And the results are subject to the NSA’s privacy rules.

The court in 2008 imposed a wholesale ban on such searches at the government’s request, said Alex Joel, civil liberties protection officer at the Office of the Director of National Intelligence (ODNI). The government included this restriction “to remain consistent with NSA policies and procedures that NSA applied to other authorized collection activities,” he said.

But in 2011, to more rapidly and effectively identify relevant foreign intelligence communications, “we did ask the court” to lift the ban, ODNI general counsel Robert S. Litt said in an interview. “We wanted to be able to do it,” he said, referring to the searching of Americans’ communications without a warrant.

Joel gave hypothetical examples of why the authority was needed, such as when the NSA learns of a rapidly developing terrorist plot and suspects that a U.S. person may be a conspirator. Searching for communications to, from or about that person can help assess that person’s involvement and whether he is in touch with terrorists who are surveillance targets, he said. Officials would not say how many searches have been conducted.

The court’s expansion of authority went largely unnoticed when the opinion was released, but it formed the basis for cryptic warnings last year by a pair of Democratic senators, Ron Wyden (Ore.) and Mark Udall (Colo.), that the administration had a “back-door search loophole” that enabled the NSA to scour intercepted communications for those of Americans. They introduced legislation to require a warrant, but they were barred by classification rules from disclosing the court’s authorization or whether the NSA was already conducting such searches.

“The [surveillance] Court documents declassified recently show that in late 2011 the court authorized the NSA to conduct warrantless searches of individual Americans’ communications using an authority intended to target only foreigners,” Wyden said in a statement to The Washington Post. “Our intelligence agencies need the authority to target the communications of foreigners, but for government agencies to deliberately read the e-mails or listen to the phone calls of individual Americans, the Constitution requires a warrant.”

Senior administration officials disagree. “If we’re validly targeting foreigners and we happen to collect communications of Americans, we don’t have to close our eyes to that,” Litt said. “I’m not aware of other situations where once we have lawfully collected information, we have to go back and get a warrant to look at the information we’ve already collected.”

The searches take place under a surveillance program Congress authorized in 2008 under Section 702 of the Foreign Intelligence Surveillance Act. Under that law, the target must be a foreigner “reasonably believed” to be outside the United States, and the court must approve the targeting procedures in an order good for one year.

But — and this was the nub of the criticism — a warrant for each target would no longer be required. That means that communications with Americans could be picked up without a court first determining that there is probable cause that the people they were talking to were terrorists, spies or “foreign powers.”

That is why it is important to require a warrant before searching for Americans’ data, Udall said. “Our founders laid out a roadmap where Americans’ privacy rights are protected before their communications are seized or searched — not after the fact,” he said in a statement to The Post.

Another change approved by Bates allows the agency to keep the e-mails of or concerning Americans for up to six years, with an extension possible for foreign intelligence or counterintelligence purposes. Because the retention period begins “from the expiration date” of the one-year surveillance period, the court effectively added up to one year of shelf life for the e-mails collected at the beginning of the period.

Joel said that the change was intended to standardize retention periods across the agencies and that the more generous standard was “already in use” by another agency.

The NSA intercepts more than 250 million Internet communications each year under Section 702. Ninety-one percent are from U.S. Internet companies such as Google and Yahoo. The rest come from “upstream” companies that route Internet traffic to, from and within the United States. The expanded search authority applies only to the downstream collection.

Barton Gellman contributed to this report.