When the Senate Judiciary Committee begins its hearing for Judge Merrick Garland’s nomination as attorney general on Monday, the nominee will likely face a sympathetic audience. Democrats will be delighted to see a spurned nominee for the U.S. Supreme Court being rewarded with the leadership of the Department of Justice. Republicans, despite shunning Garland’s Supreme Court nomination, are impressed by his even-handed handling of cases from the bench.
Senators in both parties, however, should not fail to use this hearing as an opportunity to extract promises of transparency about the state of government surveillance. Time after time, senators sent letters asking Attorney General William Barr and his predecessors for information on the extent of warrantless surveillance and the legal basis for that surveillance. Time after time, they heard nothing back.
Eight years have passed since Edward Snowden revealed that Section 215, the “business records” provision of the USA PATRIOT Act, formed the legal basis by which the National Security Agency conducted its bulk data collection program that swept up the personal information of millions. This prompted Congress, in 2015, to pass legislation outlawing this bulk data collection from phone records.
On March 15, 2020, three parts of the USA PATRIOT Act expired, including the problematic Section 215, which allowed the government to have access to any personal information held in a business record by simply citing national security. These expirations, however, have not been met with stringent cries for their reauthorization by the defenders of the intelligence community. It is fair to wonder: Is the government continuing to conduct surveillance on a legal basis outside of congressional oversight?
Sens. Mike Lee and Patrick Leahy wrote to Barr and Director of National Intelligence John Ratcliffe last year, demanding information on whether the Trump administration was conducting surveillance that bypasses their statutory authorities by claiming inherent surveillance powers. As usual, those questions went unanswered.
At the heart of the senators’ concerns is the possible misuse of executive order 12333, issued by President Ronald Reagan in 1981, to conduct surveillance operations wholly independent of any statutory authorization. Lee posted on his Senate website: “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.”
Under 12333, Sen. Richard Burr memorably declared on the Senate floor last year, when it comes to surveillance, the government “can do all of this, without Congress’ permission, with no guardrails.” So, a key question senators pose to Garland should be: “With the expiration of Section 215, does the government, in fact, claim an inherent authority to conduct surveillance?”
If this is true, it would mean a fundamental shift in accountability taken out of the hands of America’s elected officials. The last time the government claimed inherent executive authority to conduct surveillance, those claims were kept in the safe of the NSA director until whistleblowers revealed those documents.
Other questions to ask Garland include:
- “It has recently come to light that the Defense Intelligence Agency and several agencies within the Department of Homeland Security are buying large amounts of the public’s personal information from data brokers. How is the government using this information? Are Americans’ data segregated from foreigners? If so, what protections are in place for that data?”
- “Above all, is buying data just a way to get around the Fourth Amendment?”
Another set of questions concern the security of our smartphones.
- “The ACLU recently revealed that the FBI is operating an electronic device analysis unit, an in-house team capable of breaking into our personal devices. The ACLU reports it has discovered public records that indicate that this unit appears able to access encrypted information from a locked iPhone. Will you reveal the extent of this unit’s capabilities? Will you please let us know why Freedom of Information Act requests have been met with a neither confirm nor deny response? If the unit’s existence is public knowledge, why the secrecy about it? Above all, is this unit using probable cause warrants?”
No one expects Garland to answer these questions on the spot. But he would do well to follow the example of Avril Haines, confirmed as the director of intelligence, who pledged to “publicize a framework” so “people have an understanding of the guidelines under which the intelligence community operates.”
There is one definitive policy promise the judge should be prepared to make: to win back the trust of Congress and the public, Garland should answer clearly that he will not continue to support the idea of an inherent legal authority to conduct warrantless spying on the public once he assumes the helm as attorney general.
Bob Goodlatte is a former congressman from Virginia and a former chairman of the House Judiciary Committee. He now serves as senior policy adviser to the Washington, D.C.-based Project for Privacy and Surveillance Accountability.
