The latest Obama scandal has put in motion the wheels of political hypocrisy (once again). A whistleblower has revealed that the Obama administration has been using PATRIOT Act provisions to collect telephone records on millions of innocent Americans in bulk.
Representative Jim Sensenbrenner (R-WI) is blasting the administration for “excessive and un-American” abuses of the PATRIOT Act. In the meantime, establishment proponents from both parties, including Senator Saxby Chambliss (R-GA) have noted that the practice began under Bush and has been employed for the past seven years.
For some would-be conservative politicians (who have elections on the horizon), it seems that expansive government power is only objectionable when the other major party is using it.
But it gets better. The now-outspoken critic Sensenbrenner was the original author of the PATRIOT Act, according to Fox News. He’s complaining (in defense of himself, no doubt) that Obama’s “abuse” is a “really big deal” and was “never the intent” of his law.
But he should know better. He’s the one who wrote it. And when he did, he specifically changed the section of U.S. Code which now allows the government to require communications companies to divulge information. “Excessive,” eh? But how broadly was that statute written?
A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable. . . .
Note the law: “any wire or electronic communication. . . .”
When laws are written like this, it doesn’t matter what anyone says the “intent” was. Everyone involved in law knows from the nature of law practice and history that such laws will be interpreted in the future to the maximum possible. This is inevitable, and the denial of it is irresponsible. To frame laws while ignoring it should be criminal.
Despite the sudden sense of surprise, it’s not like Sensenbrenner and the rest of Congress were not warned about this in advance. For example, during the brief “debates” held during the hearings in 2001, Ron Paul warned about potential extreme applications of the law specifically at some point in the unforeseeable future:
However, other provisions of this bill represent a major infringement of the American people’s constitutional rights. I am afraid that if these provisions are signed into law, the American people will lose large parts of their liberty–maybe not today but over time, as agencies grow more comfortable exercising their new powers. . . .
I am very disturbed by the provisions centralizing the power to issue writs of habeas corpus to federal courts located in the District of Columbia. Habeas corpus is one of the most powerful checks on government and anything which burdens the ability to exercise this right expands the potential for government abuses of liberty. . . .
H.R. 3108 waters down the fourth amendment by expanding the federal governments [sic] ability to use wiretaps free of judicial oversight. The fourth amendment’s requirement of a search warrant and probable cause strikes a balance between effective law enforcement and civil liberties. Any attempt to water down the warrant requirement threatens innocent citizens with a loss of their liberty. This is particularly true of provisions which allow for nationwide issuance of search warrants, as these severely restrict judicial oversight of government wiretaps and searches.
When vast new powers over financial privacy were added to the bill a few days later, Paul issued another prescient warning:
H.R. 3004 is a laundry list of dangerous, unconstitutional power grabs. . . .
Among the most obnoxious provisions of this bill: codifying the unconstitutional authority of the Financial Crimes Enforcement Network (FinCeN) to snoop into the private financial dealings of American citizens; and expanding the “suspicious activity reports” mandate to broker-dealers. . . . These measures will actually distract from the battle against terrorism by encouraging law enforcement authorities to waste time snooping through the financial records of innocent Americans who simply happen to demonstrate an “unusual” pattern in their financial dealings.
Paul’s warnings were not mere general complaints of an ideologue saying “this is unconstitutional.” Instead, these were specific warnings that
1. These powers are so vast they will be abused
2. They will be abused in specific ways
3. This would probably occur not immediately but some time in the future
4. The abuse would then constitute a new normal
5. The abuse would become regularized against innocent, private civilians
Yet Congress, led by Sensenbrenner, ignored these warnings and passed the bill. This means they have to take at least some ownership of the abuses of which they were sternly warned, and yet in a fit of nationalistic “politician’s logic,” passed sweeping and broad powers into law.
At some point, the appeal to unintended consequences just won’t carry water anymore. But in case you think that point is not yet demonstrated, consider the following:
During the process in which Paul and a few others were criticizing the PATRIOT Act, its champion Sensenbrenner in typical establishment fashion condemned the critics as “purists” while hailing his masterwork as “a delicately balanced compromise.” So he was conscious of the position of those appealing to the Constitution, and even while appropriating their language of preserving the Constitutional protections, rejected the need to hold to them strictly.
Yet it still gets better. The original PATRIOT Act included “sunset” provisions which phased out certain powers in 2005. The bill had to be renewed for certain powers to remain. At that time, Sensenbrenner argued that the powers were now time-tested and should be made permanent. The Milwaukee Journal Sentinel reported that Sensenbrenner once against ignored his Constitutional critics:
Sensenbrenner has accused critics of the law of exaggerating its reach and potential for abuse.
A spokesman for the Judiciary Committee said of Sensenbrenner: “He has come down to the opinion these (powers) aren’t open to abuse and the sunsets aren’t necessary anymore.”
Get that: in 2005, Sensenbrenner believed that the PATRIOT Act was not open to abuse and that anyone who said so was exaggerating.
When the powers were again renewed in 2011, after three years of the Obama administration, Sensenbrenner voted “Yea” once again.
But now, suddenly, when it is revealed that Obama is actually applying the law to the extent which those “purists” warned, Sensenbrenner and other conservatives are shocked, dismayed, and consider it a “really big deal.”
I’m sorry, Mr. Sensenbrenner, but your record speaks against your sincerity. Had you come out and said, “I was wrong about the PATRIOT Act powers to begin with,” instead of appealing to unintended consequences or even alleged abuses against original intent, your alarm might have been respectable.
Instead, so-called RINOs and neoconservative politicians should be looking over their shoulder for the approach of more consistent, more honest, more conservative, and more constitutional opponents come primary season. Because this type of hypocritical behavior is reprehensible, and today is fairly easy to expose.