Leahy demands answers from Barr on potentially illegal surveillance programs

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Leahy demands answers from Barr on potentially illegal surveillance programs

Wed, 07/22/2020 - 9:57am -- tim

Vermont Business Magazine Senators Patrick Leahy (D-Vermont) and Mike Lee (R-Utah) wrote to Attorney General William Barr and Director of National Intelligence John Ratcliffe on Tuesday, demanding information on whether and how the Trump administration has halted mass surveillance programs authorized by now-expired Foreign Intelligence Surveillance Act (FISA) provisions under the USA FREEDOM Act. The senators also demanded information on whether the administration is conducting surveillance that bypasses their statutory authorities, under any illegal claim of inherent surveillance powers.

Past administrations have tenuously relied on Executive Order 12333, issued in 1981, to conduct surveillance operations wholly independent of any statutory authorization.  With the expiration of three duly-passed statutory surveillance authorities, the executive branch may be secretly relying on this or other alleged inherent powers to continue its intelligence collection efforts.  This would constitute a secret system of surveillance with no congressional oversight potentially resulting in programmatic Fourth Amendment violations on a tremendous scale.

“Congress and the American people have a right to know if this or any other administration is spying on people in the United States outside of express congressional approval, with no or diminished guardrails,” wrote the senators.

The senators continued:  “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.”

Leahy and Lee authored the USA FREEDOM Act in 2015, which provided the first major overhaul of executive surveillance authorities in decades.  In May, the senators also authored an amendment to H.R. 6172, the USA FREEDOM Reauthorization Act of 2020, to strengthen the amici process and improve the disclosure of exculpatory evidence in the FISA court system.  That amendment was overwhelmingly approved in the Senate by a vote of 77 to 19 and the underlying legislation, with the Lee-Leahy amendment included, then passed the Senate by a vote of 80 to 16.

Read the letter here. AND BELOW

The Honorable William P. Barr

Attorney General of the United States

U.S. Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530

The Honorable John Ratcliffe

Director of National Intelligence

Office of the Director of National Intelligence

Washington, DC 20511

Dear Attorney General Barr and Director Ratcliffe:

We write to confirm that federal agencies have terminated surveillance operations authorized by now-expired Foreign Intelligence Surveillance Act (FISA) provisions under the USA FREEDOM Act.[1]  With the expiration of these statutory authorities—commonly referred to as lone wolf, roving wiretap, and Section 215 authorities—the executive branch is now limited to conducting relevant surveillance under pre-USA PATRIOT Act authorities. 

At times the executive branch has tenuously relied on Executive Order 12333, issued in 1981, to conduct surveillance operations wholly independent of any statutory authorization.  This poses an extremely concerning and constitutionally suspect scenario where, as is the case now, Congress’ duly-passed statutory surveillance authorities have expired, but the executive branch may be secretly relying on its alleged inherent power to continue its intelligence collection efforts without congressional authorization and outside of the statutory framework.  This would constitute a system of surveillance with no congressional oversight potentially resulting in programmatic Fourth Amendment violations at tremendous scale.  This is especially concerning on the heels of IG Horowitz’s report highlighting consistent errors in approved FISA warrants. 

We strongly believe that such reliance on Executive Order 12333 would be plainly illegal.

Government agencies have further relied on faulty interpretations of federal statutes to authorize or continue surveillance.  For example, the Drug Enforcement Administration used its general subpoena power[2] to collect bulk telephone call records from the early 1990s to 2013—without an appropriate legal review.  As explained by a 2019 Department of Justice Inspector General report into the activity, “[s]everal published court decisions have clearly suggested potential challenges to the validity of the DEA’s use of its statutory subpoena power in this expansive, non-targeted manner.”[3]  The government's similar reliance on secret legal interpretations of Section 215 reflects a pattern of obscuring the true contours of the executive's surveillance activities.

Congress and the American people have a right to know if this or any other administration is spying on people in the United States outside of express congressional approval, with no or diminished guardrails.  We ask that you respond to the following by August 7, 2020:

1.     Provide documentation of the guidance issued to relevant federal agencies and procedures enacted to ensure that surveillance activities under the expired USA FREEDOM authorities have halted. 

a.     Please detail whether and how such guidance distinguishes among investigations that were ongoing when authorities lapsed on March 15, 2020; investigations into conduct that occurred before the lapse in authorities, including whether such agencies may add targets or additional identifiers in enterprise investigations that predate the lapse; and enterprise investigations into conduct that occurred before the lapse.

2.     Provide a detailed explanation of this administration’s interpretation of Executive Order 12333 in terms of any claimed inherent surveillance powers.

a.     Please explain whether the Department of Justice considers domestic records surveillance and surveillance involving records collection from domestic records holders lawful when conducted in the absence of statutory authority.

3.     Provide a detailed explanation of any other authority that this administration believes grants it inherent surveillance powers.

4.     Confirm whether any federal agencies or investigations are relying on Executive Order 12333 or other claimed inherent surveillance powers to conduct surveillance in lieu of expired authorities under the USA FREEDOM Act.

5.     On March 11, 2004, the executive branch secretly claimed the power to surveil records in bulk—in particular telephone and Internet metadata.  The executive branch claimed that executive authority “displace[s]” FISA when the two conflict; and that the government may presumptively treat records as foreign unless a “party to such communication is known to be a citizen of the United States.”  Explain which, if any, of these legal theories are relied upon as the basis, in whole or in part, for any ongoing surveillance programs.

6.     Provide a detailed explanation of the extent to which the government is purchasing or may purchase information that would require a court order to acquire under Section 215 or any other expired USA FREEDOM authority.

To be clear, we support reauthorizing the expired USA FREEDOM authorities.  After our amendment to strengthen the amici process and improve the disclosure of exculpatory evidence was approved in the Senate, we both voted for H.R. 6172, the USA FREEDOM Reauthorization Act of 2020.  That legislation, with our amendment included, passed the Senate by an overwhelming vote of 80-16.

But 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.  And any surveillance conducted in the absence of statutory authorities and congressional oversight would be extraordinarily concerning and illegal.

Thank you for your attention to this matter. If you have any questions, or if any of the above responses involve classified information that must be transmitted in a secure manner, please contact 000000000 with Senator Leahy’s staff at 00000000000  or 000000000 with Senator Lee’s staff at 00000000000. [phone numbers redacted]

Sincerely,

_____________________                                                                  _____________________

Patrick Leahy                                                                                      Mike Lee

United States Senator                                                                          United States Senator

[1] Expired authorities include those authorized in Section 102(b)(1) of the USA PATRIOT Improvement and Reauthorization Act of 2005 and Section 6001(b)(1) of the Intelligence Reform and Terrorism Prevention Act of 2004.

[2] Under 21 U.S.C. § 876(a).

[3] Office of the Inspector General, A Review of the Drug Enforcement Administration's Use of Administrative Subpoenas to Collect or Exploit Bulk Data, Department of Justice (March 2019), https://oig.justice.gov/reports/2019/o1901.pdf.

Source: WASHINGTON (TUESDAY, July 21, 2020) – Senators Patrick Leahy