WASHINGTON – Sens. Mike Lee (R-UT) and Patrick Leahy (D-VT) 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.

The full text of the letter can be found here.