Kash Patel, nominee for FBI director, made waves Thursday by suggesting there are scenarios where federal law enforcement need not secure a warrant before conducting surveillance, Fox News reported. Despite objections to this notion from civil rights advocates, some legal experts agree it's appropriate.
Patel was grilled in Congress after President Donald Trump picked him to head the agency. One of the questions he was asked pertained to Section 702 of the Foreign Intelligence Surveillance Act.
This portion of the law is controversial because it doesn't require a warrant before allowing the government to spy on suspects. However, Patel will have the FBI scrambling as he believes that the permission can only remain with the utmost caution.
Patel acknowledged that there are "those that have been in government service and abused it in the past." For this reason, Patel believes it is necessary to "work with Congress to provide the protections necessary for American citizens dealing with these matters."
In April, Congress renewed Section 702, which allows for warrantless surveillance and compels communications companies to turn over electronic data. Some are surprised at Patel's willingness to keep this rule intact, given its potential for abuse of Constitutional rights.
However, Patel's approach to the issue is pragmatic. "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.
"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," he added, suggesting they proceed with caution.
The battle between protecting Americans' Fourth Amendment rights and promptly gathering intelligence will not be settled quickly. Still, former district attorney Phil Holloway believes Patel is on the appropriate side of the argument, given his position.
"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. But, ultimately, it's not his call," Holloway said, noting that it's up to Congress.
Trump was the victim of what can be called a misuse of FISA, if not an outright abuse. According to the Associated Press, the FBI spied on his 2016 campaign based on the false Steel dossier that suggested Trump was colluding with Russia.
Even though the government obtained warrants, the underlying evidence was ridiculously flimsy. This suggests there is further opportunity for abuse if surveillance can occur without even the pretense of a warrant.
Patel's approach is more nuanced. "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," Dave Aronberg, a state attorney from Palm Beach County, Florida, told Fox News Digital.
"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," Aronberg added. Of course, the stated purpose is always for something grave like terrorism, but giving up a portion of any right can invite government overreach.
Patel's answer was likely constructed to appease those who would vote on his confirmation. However, Americans still must be vigilant that their rights are not trampled on, even if the person doing it is supposedly on their side.
