Attorney general nominee Loretta Lynch fields questions from the Senate Judiciary Committee during her confirmation hearing Wednesday. Sen. Dianne Feinstein, D-Calif., queried Lynch about the Foreign Intelligence Surveillance Act.
WASHINGTON — During the first day of her confirmation hearing, between numerous questions about immigration policy, U.S. attorney general nominee Loretta Lynch was asked about the Foreign Intelligence Surveillance Act of 1978, which outlines procedures for physical and electronic surveillance within the United States.
Senator Dianne Feinstein, D-Calif., asked Lynch about the three FISA provisions set to “sunset” in June: the roving wiretap authority, the lone wolf authority, and the business records authority. Feinstein, the vice chairwoman of the Senate Intelligence Committee, supported their extension in 2011, when the provisions were last set to expire.
“We as a nation rely on certain secret sources and methods to protect our national security,” Feinstein told the Senate in 2011. “Clearly, this is a time where every legal counterterrorism and intelligence-gathering mechanism should be made available.”
The three provisions were enacted following the Sept.11 terrorist attacks, two as part of the USA PATRIOT ACT, while the lone-wolf provision was enacted in 2004 as part of the Intelligence Reform and Terrorism Prevention Act.
All three were extended for four years in 2011, expiring June 1 of this year. At Lynch’s confirmation Wednesday, Feinstein asked the nominee to describe “the importance of these three provisions and what would be the operational impact if the three were allowed to sunset in June.”
The roving wiretap authority, initially authorized for use in criminal cases by FISA, was expanded with the USA PATRIOT Act to allow government agents to tap any phone belonging to their target as an attempt to track individuals who use “burner” phones.
Lynch, who mentioned her familiarity with roving wiretaps in the narcotics cases she worked as a young prosecutor, acknowledged need for a “full panel of investigative tools and techniques” to combat the “evolving threat that terrorist presents against us,” but emphasized the need to balance these concerns with respect for privacy.
Lynch was less specific about the lone wolf provision, simply reiterating the need to provide law enforcement with necessary tools while again calling for careful consideration of privacy. The provision allows the government to collect information on a suspected terrorist who does not have any known ties to specific international terrorist organizations.
The final expiring provision, the business records authority, enables the request of “any tangible thing” deemed relevant to an authorized national security investigation, and has been used to permit the bulk collection and storage of data. According to documents leaked by whistleblower Edward Snowden in 2013, this provision has never been used to stop a terrorist attack. Lynch deemed the supervision of the FISA courts “an effective check,” but said she was open to discussing modifications.
Attorney General Eric Holder was criticized when documents with his signature were released in 2013 detailing the procedures the NSA must follow in targeting non-U.S. persons revealed that U.S. communications can still be collected, retained, and used. Holder was also asked about the provisions at his own confirmation hearing, when he said he would take them under review, but would likely support them.
Lynch struck a similar tone, but stopped short of saying she expected to support them.
“I would hope we could move forward with any proposed changes to FISA with a full and complete understanding of the risks that we are still facing and if any changes need to be made,” Lynch said.
