Senators Demand Answers From Trump Administration on Expired Surveillance Operations

July 22, 2020 Updated: July 22, 2020

Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) are asking the Trump administration to provide information on whether and how it has ended surveillance programs authorized under several provisions of a federal intelligence law that have since expired.

Leahy and Lee wrote to Attorney General William Barr and Director of National Intelligence John Ratcliffe on Tuesday raising their concerns that the departments may still be continuing their surveillance activities by relying on Executive Order 12333 after three surveillance tools under the USA Freedom Act, a 2015 intelligence law, expired in March.

Previous administrations have “tenuously relied” on Executive Order 12333—issued in 1981—to conduct surveillance without statutory authorization or congressional oversight, the senators said. With the expiry of the three key authorities—commonly known as the roving wiretap, lone wolf, and business records—they were worried that the Trump administration may be relying on the executive order’s inherent power to continue its surveillance operations.

“This would constitute a system of surveillance with no congressional oversight potentially resulting in programmatic Fourth Amendment violations at a tremendous scale,” the senators wrote in their letter (pdf).

They also added they believe relying on the power of Executive Order 12333 to conduct surveillance would be “plainly illegal.”

“The rights of all Americans depend on their government exercising its power responsibly, adhering to the rule of law, and upholding its duty to act transparently. Any surveillance conducted in the absence of statutory authorities and congressional oversight would be extraordinarily concerning and illegal,” they wrote.

The senators are asking Barr and Ratcliffe to also provide information on whether they are relying on the executive order or any other inherent surveillance powers.

The lapsed surveillance tools failed to be reauthorized despite negotiation efforts by lawmakers in both chambers earlier this year. The reauthorization bill contains some amendments to address deficiencies in the Foreign Intelligence Surveillance Act (FISA) process. The surveillance tools, which need to be periodically renewed, are designed to help law enforcement officials track suspected terrorists and spies.

A version of the reauthorization bill was first passed in the House in March in a 278-136 vote. The Senate in early May then voted to renew the surveillance tools in a bipartisan vote, while adding one amendment proposed by Leahy and Lee. That amendment would broaden third-party oversight of the FISA process, in particular, it would require FISA court judges to appoint a third-party observer in any case involving a “sensitive investigative matter,” as long as the court does not deem it inappropriate.

The bill then returned to the House for another vote, but has since been stalled after President Donald Trump, House Republican leadership, and Democrats expressed opposition.

Trump had urged Republican House lawmakers to vote against the FISA reform bill in May over concerns that the Obama administration had allegedly abused the FISA process to improperly surveil Trump’s presidential campaign in 2016 and 2017. FISA warrants were approved by the court to surveil former Trump campaign aide Carter Page, and officials have called for reforming the process after the Department of Justice (DOJ) Inspector General Michael Horowitz last year found 17 significant errors and omissions during the process.

Meanwhile, the DOJ also expressed concerns over the Senate’s version of the bill, saying that it would recommend Trump to veto the law if it reaches his desk. The department said the amendment “would unacceptably degrade our ability to conduct surveillance of terrorists, spies, and other national security threats.”

The three authorities that have expired after the House did not act on a Senate extension on the bill in March, include allowing the FBI to obtain a court order for business records of individuals in national security investigations, the “roving wiretap” that permits officials to maintain surveillance on a target who may be using multiple phones to thwart detection, and the “lone wolf” provision that allows federal officials to obtain surveillance authority without establishing that the subject is acting on behalf of an international terrorist organization.

An official from the Office of Director of National Intelligence said they had received the letter and will respond appropriately. Meanwhile, the Justice Department did not immediately respond to a request to comment.

Mimi Nguyen-Ly contributed to this report.

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