“Intelligence community has turned into the boy who cried wolf.”

Here’s a positive aspect of Congress being unable to conduct its business.

The federal surveillance powers put in place following the 9/11 terrorist attacks have lapsed, limiting the governments power to use its virtually unlimited authority to conduct investigations

Excerpted from the Wall Street Journal 4.13.2020

WASHINGTON—The recent lapse of a set of federal surveillance powers has begun to limit the FBI’s ability to pursue some terrorism and espionage suspects, a top Justice Department official said, outlining how the ripple effects of the coronavirus pandemic are being felt across U.S. national security efforts.

Privacy advocates have challenged claims that the expiration of the tools jeopardizes national security.

“Clearly, the sky hasn’t fallen,” said Elizabeth Goitein, co-director of the national security program at the Brennan Center for Justice. “What we are seeing is that the intelligence community has turned into the boy who cried wolf, because they are always painting the most dire picture if they lose an authority.”

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The Justice Department has been unable to obtain certain wiretaps and to file requests to obtain business records from companies in connection with national security investigations between five and 10 times since Congress allowed the surveillance provisions to expire last month, said John Demers, the head of the department’s national security division, in an interview.

“The House legislation includes important reforms to FISA and reauthorizes national security tools that we would have used, but have not in the weeks since the law expired,” Mr. Demers said, referring to the Foreign Intelligence Surveillance Act, a decades-old law that has recently endured bipartisan scrutiny..

Focused on addressing the coronavirus pandemic, lawmakers left Washington last month without renewing three FISA-enabled intelligence tools, which expired on March 15. The issue was left unresolved in part due to competing factions within both political parties disagreeing over which privacy measures to add to the proposed legislation extending the authorities, as well as inconsistent signals from the Trump administration.

The prospect of a prolonged period without the national security authorities created in the wake of the Sept. 11, 2001, terrorist attacks has alarmed current and former intelligence and law-enforcement officials. They warned that the Federal Bureau of Investigation, especially, now lacks a critical tool it uses to access a wide variety of business records deemed relevant to continuing terrorism or espionage investigations.

The other expired powers allow investigators to easily wiretap a suspect who has switched phones—known as roving wiretaps—and surveil a so-called lone wolf terrorist who doesn’t possess any discernible ties to a foreign terrorist organization.


The business records provision can allow for investigations that were taking place before March 15 to continue unencumbered. Mr. Demers acknowledged that officials were “considering right now” whether to try to file some business records applications using that part of the law.

He also said investigators haven’t been able to obtain renewals for existing roving wiretaps since the law’s expiration, but declined to quantify how many.

While most employees at the Justice Department are able to work from home during the coronavirus pandemic, many employees in the national security division don’t have that luxury because of the need to be in the office to access classified information in secure rooms.

The quiet building has taken some getting used to: Its cafeteria is shuttered, and Mr. Demers said he has been visiting a nearby restaurant every day that offers takeout.

“I have to introduce some variety into my lunches,” Mr. Demers said.