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.
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.
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.
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.”
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.