Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Ut.) on Thursday pressed the Trump administration on whether and how mass surveillance programs authorized by the Foreign Intelligence Surveillance Act have been halted since the act’s expiration.
The letter to Attorney General William Barr and Director of National Intelligence John Ratcliffe raises concerns that the administration may be be continuing to conduct surveillance operations by relying on Executive Order 12333.
The order, issued on 1981, has been used before to conduct operations without statutory authorization or congressional oversight.
“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,” Sens. Leahy and Lee wrote.
“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.”
Reauthorization of the key FISA provisions under the USA Freedom Act has stalled.
After Lee and Leahy successfully added an amendment increasing the role of outside legal experts in FISA court hearings to the House bill in May, Democratic leadership in the lower chamber was unable to get enough votes together and sent the bill to committee.
The senators letter Tuesday asks for documentation showing the administration issued guidance to ensure surveillance activities under USA Freedom were halted on March 15.
It also asks for the administrations interpretation of EO 12333 and whether any agencies or investigations are currently relying on it.
The lawmakers pressed the administration to also disclose whether it is relying on legal theories which claim the government may presumptively treat records as foreign for purposes of collection.
According to Sean Vitka, senior policy counsel at the progressive group Demand Progress, these questions are “critically important.”
“The last time Bill Barr was Attorney General, he authorized a mass surveillance program under the DEA that operated in secret for over 20 years, and we can’t even begin to measure its impacts on Americans’ rights,” he said in a statement.
“In March, the Chairman of the Senate Select Committee on Intelligence claimed on the Senate floor that President Trump can conduct mass surveillance of Americans ‘without Congress’s permission, with no guardrails.’ This is alarming, dangerous, and urgent.”