Attorney General nominee William Barr, left, turns to answer a reporter’s question as he arrives to meet with Sen. Ben Sasse, R-Neb., on Capitol Hill, Wednesday, Jan. 9, 2019 in Washington.
Photo: AP / Alex Brandon

The corporate lawyer and former chief U.S. law enforcement officer nominated to replace Jeff Sessions at the Justice Department has a controversial past involving the warrantless surveillance of Americans and once fought to make it easier for phone companies to secretly hand over customer records to the government, legal experts at the American Civil Liberties Union warned on Wednesday.

In 1992, William Barr, who previously served as U.S. attorney general under President H.W. Bush, was instrumental in the development of a program that enabled the Justice Department and Drug Enforcement Agency to collect the telephone records of millions of Americans, regardless of whether they were suspected of criminal activity.

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The full scope of the program, authorized by Barr in the final months of the Bush administration, was first revealed in 2015.

“The DEA program ultimately became a model for the NSA’s phone records collection program under the Patriot Act of 2001, which the agency used to collect the domestic call records of tens of millions of Americans,” the ACLU attorneys wrote, adding: “Barr has advanced dubious legal theories that have been rejected by the courts, Congress, and the public.”

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That NSA program, exposed by former contractor Edward Snowden in 2013, was judged illegal by a Manhattan appeals court a year later.

During testimony before the House Select Committee on Intelligence in 2003, Barr argued that the PATRIOT Act had failed to address what he saw as “severe problems” with FISA, the law allowing for the collection of electronic foreign intelligence but which has also enabled the government to secretly collect and store phone records belonging to millions of innocent Americans.

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Specifically, Barr argued in favor of doing away with the need to establish “probable cause” that individuals targeted under FISA were acting on behalf of a foreign power, noting law enforcement’s alleged difficulty in doing so in the case of al Qaeda member Zacarias Moussaoui, who was later sentenced in the U.S. to life in prison for plotting to take part in the September 11, 2001, terrorist attacks.

In written testimony, Barr argued: “Most of law fleshing out the ‘probable cause’ standard developed in the criminal law enforcement arena where it might be logical to insist on a higher evidentiary standard. However, when this standard is imported into the national security realm, it calls for a greater degree of assurance than is appropriate given the magnitude of the potential threat.”

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ACLU has labeled Barr “the godfather of the NSA’s bulk data collection program.”

Barr has likewise argued in favor of diminishing the protections offered to Americans under the Electronic Communications Privacy Act; namely by broadening the types of records federal agents can acquire without a warrant in counterterrorism investigations—measures that former FBI Director James Comey and other senior FBI officials have also endorsed against the input of numerous civil liberties experts, including those of the ACLU, the Reporter’s Committee for Freedom of the Press, and the Center for Democracy & Technology, among others.

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Senate privacy hawk Ron Wyden, a Democrat of Oregon, referred to Barr’s writings on the scope of presidential authority “antidemocratic,” saying he views the presidency as “effectively royalty, unaccountable to laws, the Constitution, or constraint by Congress.”

“William Barr has defended the firing of FBI Director James Comey, backed Trump’s calls for investigations of political rivals, supported unconstitutional surveillance of Americans, opposed Roe vs. Wade, and advocated for the use of torture,” Wyden said in a statement emailed to Gizmodo. “As Attorney General, he rubber-stamped pardons for key figures involved the secret, illegal sale of weapons to Iran. These views would be unacceptable under normal circumstances; when combined with Donald Trump’s constant attempts to end-run the law, they are potentially disastrous.”

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In his 2003 testimony, Barr argued that, with regard to terrorism, the Constitution vests in the president “the broadest possible defense powers” and “the ultimate responsibility for determining what actions are necessary.” He added: “The Constitution is concerned with one thing—destruction of the enemy.” Barr continued by arguing that terror suspects should be held indefinitely as enemy combatants, and that searches should be conducted “without meeting the standards of the criminal justice system.”

Barr also served as executive vice president at Verizon during the Bush W. Bush administration, where he lobbied to immunize telecommunications companies against lawsuits stemming from their participation in the U.S. intelligence community’s warrantless surveillance activities.

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Barr’s nomination is a reflection of the Trump administration’s pursuit of “vast surveillance powers at the expense of our Fourth Amendment rights,” as well as Trump’s disregard for the authority of Congress, the ACLU said.

“Members of the Senate Judiciary Committee must seize their opportunity to question Barr thoroughly,” stressed the group, “and determine whether he will protect Americans from government intrusions and expansive executive power if he’s returned to run the Justice Department for a second time.”

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