DOJ Official Urges House to Renew FISA’s Roving Surveillance Provision
A Justice Department official called on Congress to reauthorize three key provisions in the Patriot Act set to expire in May, including one that allows quick shifting of phone taps from one carrier to another. The testimony came Wednesday during a hearing by the House Judiciary Committee’s Crime, Terrorism and Homeland Security subcommittee.
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The provisions are “important to our ability to conduct effective national security investigations,” said Todd Hinnen, acting assistant attorney general for national security. “Allowing them to expire even for a brief time would make America less safe from international terrorism.” The provisions all provide protections against abuse, he said. “Each requires the government to make a certain showing to an independent court,” Hinnen said. “Each imposes strict rules governing how the government handles investigations regarding United States persons. Each is subject to executive branch oversight."
"The three expiring provisions are tools that are critical to help us defend our national security and they must be reauthorized,” said Robert Litt, general counsel to the Office of the Director of National Intelligence. The Foreign Intelligence Surveillance Act (FISA) Court “is not a rubber stamp but gives a searching review to each application that comes before it and often requires changes and modifications,” he said. The administration also considers each application carefully before they're submitted to the court, he said.
The first provision is FISA’s roving electronic surveillance provision, which allows the government to obtain a generic order from a court, so agents can quickly shift surveillance from one carrier to another when a suspect changes phones. The provision is modeled on similar roving authority that law enforcement has had for wiretaps since 1986 and has repeatedly been upheld in the courts, Hinnen said. He noted that the government only makes use of the provision about 20 times each year, “generally where the subject is a highly trained foreign intelligence officer or a terrorist with particularly sophisticated trade craft."
Litt cited as a specific example a foreign agent now under surveillance who switches cellphones frequently. “Without roving surveillance there would be a gap in collection each time this agent switched phones because of the time we'd need to get a new court order,” he said. Nathan Sales, a law professor at George Mason University, said the provision allows the government to direct the same tools used against mobsters and drug lords against potential terrorists. “The basic idea is to level the playing field,” he said. “If a roving wiretap is good enough for [fictional gangster] Tony Soprano, it’s good enough for [9/11 hijacker] Mohammed Atta."
The second provision is the “lone wolf” one that lets the government conduct surveillance of non-U.S. citizens involved in international terrorism, without first demonstrating they are connected to an international terrorist group. The government has not had to use this authority, but views it as an important tool, Hinnen said. The third provision allows the government to apply to the FISA Court for an order directing the production of business records or other information relevant to a national security investigation.
"As we review these expiring provisions, Congress must set aside fiction and focus on the facts,” said Judiciary Committee Chairman Lamar Smith, R-Texas. “The three expiring national security provisions that Congress will consider this year are both constitutional and common sense.”