Kash Patel, President Donald Trump’s pick for FBI director, claimed Thursday that he won’t stand for federal law enforcement needing a warrant for surveillance in some scenarios because it’s plainly impractical in real-time practices. Despite lawmakers’ surprise at his opposition, legal experts say his take is far from unusual within the law enforcement arena.
Patel was peppered with questions Thursday on a provision called Section 702 of the Foreign Intelligence Surveillance Act. When asked if he believed that a warrant requirement is “practical and workable or even a necessary element of 702,” Patel said he had issues with “those that have been in government service and abused it in the past.” Patel said that because of the viability of abuse, “we must work with Congress to provide the protections necessary for American citizens dealing with these matters.”
“Having a warrant requirement to go through that information in real time is just not comported with the requirement to protect American citizenry,” Patel said during his Senate hearing. “I’m all open to working with Congress on finding a better way forward. But right now, these improvements that you’ve made go a long way.”
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“The fact that the soon-to-be head of the nation’s, sort of, top law enforcement agency takes the position that is favored by law enforcement shouldn’t surprise anybody,” former assistant district attorney and criminal defense attorney Phil Holloway told Fox News Digital.
“When Mr. Patel answered the question the way that he did, that answer is adverse to the public positions taken by lawmakers on both sides of the aisle.”
Patel, throughout his testimony, emphasized his interest in working with Congress if he were to head the FBI.
“Some lawmakers have absolutely called for the necessity of a warrant in these situations. And so it makes sense that the senators would ask the nominee to run the FBI whether or not he has an opinion on it,” Holloway continued. “But, ultimately, it’s not his call.”
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“I’ve always thought that there’s a middle ground here where you don’t have to. And I think there are some situations that warrant a warrant and deserve a warrantless search,” Palm Beach County, Fla., state attorney Dave Aronberg told Fox News Digital. “And I think Patel’s remarks show that he thinks the same way.”
Aronberg noted that under U.S. law, there is a warrant exception under exigent circumstances, i.e. emergency situations, where it is impractical to obtain a warrant.
“What Kash Patel is saying is that there may be some situations that may be in that gray area where you shouldn’t have to get a warrant,” Aronberg said. “And I am encouraged by his comments because I do think that law enforcement needs flexibility when it comes to national security matters, especially with the very real threat of terrorism here on our shores.”
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Congress voted to pass a renewal of FISA’s Section 702 last April. The legislation serves as a governmental tool in gathering intelligence on foreign subjects using the compelled assistance of electronic communication service providers.
If the renewal had not been passed, the expiration would have meant companies would not be forced to comply with the government’s requests for surveillance aid under the bill.
Without the FISA section’s reauthorization, the government would be required to seek a warrant to compel any such assistance, which is a process that can span extended periods of time.
Earlier this month, a federal district court ruled that the federal government had violated the Fourth Amendment when it searched the communications of an Albanian citizen residing in the U.S. at the time of his arrest without a warrant. The information had been collected under FISA’s Section 702.
“The individual rights of people in the United States under our Constitution come first,” Holloway said. “So having constitutional requirements that sort of frustrate or perhaps slow down law enforcement, this is a tension that is not new at all. And so what we’re seeing is this playing out.”
Fox News Digital’s Liz Elkind and Julia Johnson contributed to this report.
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