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It has been almost two weeks since the statutory deadline to declassify a potentially damning Foreign Intelligence Surveillance Court (FISC) opinion passed on September 13.
The judge who wrote that opinion in March found serious issues with the filtering tools U.S. intelligence agencies use to sift through queries for information on individuals who have communicated with foreign intelligence targets. Such agencies have the authority to collect the communications of foreign nationals abroad under Section 702 of the Foreign Intelligence Surveillance Act (FISA), but are not allowed to spy on American citizens. In practice, the program has enabled agencies like the FBI and NSA to amass troves of Americans’ communications data, which they do not need a warrant to access.
FISC opinions with significant legal interpretations are subject to a declassification review, and must be made public within a period of 180 days. The onus to do both falls on the Office of the Director of National Intelligence (DNI), now headed by former federal prosecutor Jay Clayton, and the Justice Department’s Office of the Attorney General.
Despite ignoring that deadline, DNI has reportedly warned members of Congress that Section 702 will “go dark” if they fail to pass a clean reauthorization of the program by November 20. In reality, and as the Brennan Center for Justice explains, the FISC certification actually lasts until March of next year.
In other words, DNI is exerting pressure on congressional lawmakers to renew Section 702 by presenting a false looming deadline, and hence implied security risks, while simultaneously withholding potentially highly relevant information from Congress and the public alike about how much U.S. intelligence agencies are violating Americans’ constitutional rights.
Privacy advocates say the administration is deploying the same scare tactics used many times in the past to manufacture a false sense of urgency around Section 702.
“The administration’s failure to follow the law on disclosing what is reportedly quite a damning FISA court opinion is just further evidence of why the internal self-policing reforms that have been put forward by surveillance hawks in Congress are not sufficient, and why there needs to be a warrant requirement,” Elizabeth Goitein, senior director of liberty and national security at the Brennan Center for Justice, told the Prospect.
She continued: “Congress has plenty of time to get that done, and there is no practical reason for trying to rush something through by November.”
Although U.S. code permits the government to waive the FISC declassification requirement if necessary to protect national security, classified sources, or intelligence-gathering methods, the law still directs the attorney general to produce a public statement “summarizing the significant construction or interpretation of any provision of law” that is reflected in an opinion.
Neither agency would disclose to the Prospect whether they have invoked this waiver, and no such statement has been released.
At his confirmation hearing in July, U.S. Attorney General Todd Blanche testified that DNI and the Justice Department had been “working diligently with the intelligence community” to declassify the opinion. Blanche went as far as to say that they “anticipate being able to make the public release in advance of the statutory deadline.” His testimony came after the Senate Permanent Select Committee on Intelligence conveyed its expectation that the Trump administration would expedite declassification and make the opinion public by mid-May.
“The administration’s response was to literally ignore it,” Goitein said.
Conversely, Clayton, and presumably the intelligence community, want Congress to think that the sky is falling.
“The one grain of truth is that there does need to be a statute in place at the point that the government submits its applications,” Goitein told the Prospect. “The real question is when the government has to submit its applications, and that is the effective deadline for when Congress has to act.”
In recertifying Section 702, the government submits a draft application 30 days before submitting its final application. FISC has 30 days to render a decision, meaning there are 60 days between the government filing its initial application, and when FISC must rule on it. Moreover, as Goitein observed, “the mere filing of an application automatically extends the existing certifications until the FISA court rules on that application.”
To avoid an actual lapse, the government would need to file an application before March 17, 2027, making that roughly the deadline for Congress to renew Section 702. If the government does need more time, there is nothing stopping Congress from temporarily extending the existing certifications for a brief period, though that runs the risk of handing the Trump administration “the functional equivalent” of a clean, one-year reauthorization, according to the Brennan Center.
Incidentally, it is not obvious why it is so important to grant the Trump administration—whose authoritarian tendencies include routinely disregarding the law, including surveillance regulations, as we have seen—more legal surveillance powers, particularly when it has also transferred immense quantities of federal law enforcement resources away from fighting crime, drug trafficking, and terrorism, and onto mass deportation instead.
AS CLAYTON CHANNELS CHICKEN LITTLE, privacy advocates find themselves shouting into the void in the face of a Groundhog Day–esque dilemma. They say the administration is deploying the same scare tactics used many times in the past to manufacture a false sense of urgency around Section 702.
Those tactics were on full display in the run-up to the program’s lapse in June. At the time, intelligence hawks insinuated that telecommunications companies may not comply with FISA court orders if Section 702 were to expire. But the statute includes a grandfathering provision that makes clear companies must continue complying through March 2027, so while the program did lapse, “that didn’t happen,” Goitein said, “because the law is clear.”
Despite this, intelligence hawks have doubled down amid DNI’s attempt to strong-arm members of Congress into passing a clean reauthorization of Section 702. One such hawk, Rep. Jim Himes (D-CT), the ranking member of the House Permanent Select Committee on Intelligence, suggested in an interview with The Hill that “the companies decided they weren’t going to sue and stop providing information.”
Could it be that they decided to comply because the law says they have to? Clearly yes, but admitting that would undermine his position.
“The administration ignoring the demand from the Senate Intelligence Committee leadership months ago, and now the law to release the FISA court decision, tells us everything we need to know about how out of control things have become,” Donald Bell, policy counsel at the Project on Government Oversight (POGO), told the Prospect. “This is part of the reason why the effort to manufacture pressure on Congress to reauthorize FISA without reform is falling flat on Capitol Hill.”
But the intelligence community has been, and continues to be, on the offensive. At a recent Senate Judiciary Committee hearing, Sen. John Cornyn (R-TX) asked FBI Director Kash Patel whether he believes it is “important” for Congress to renew Section 702, and about the implications of the FISC certification expiring, to which Patel responded: “What the FBI does not do is collect on U.S. citizens.”
Patel went on to say that if the program were “to go dark, we would have a lot of problems, or we would have no ability to trace that information.” His comments evoked a collective eye roll from privacy advocates.
“As soon as the government gets the data, it goes rifling through it, looking for the communications of Americans,” Goitein said. “Patel didn’t mention that last part.”
He also failed to acknowledge the findings of a 2023 report from the Privacy and Civil Liberties Oversight Board, which determined that there was relatively little national security value to warrantless backdoor searches involving U.S. persons. Even members of Congress have been subject to these searches.
The arbitrary deadline manufactured by DNI is part and parcel of the intelligence community’s continued efforts to scare Congress into rushing through another clean reauthorization of Section 702, privacy advocates say. They have urged congressional lawmakers not to take the bait, and instead establish safeguards to protect Americans from unchecked government surveillance.
“Everything we’ve seen this year illustrates why there needs to be real guardrails, and importantly, penalties, in this space,” Bell told the Prospect. “Congress cannot give this or any future administration a blank check for warrantless surveillance.”
