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Editor's Pick

Memo to Congress: Before Acting on FISA, Get the Full Facts

Patrick G. Eddington

US House Speaker Mike Johnson (R‑LA).

If published reports are accurate, House Speaker Mike Johnson (R‑LA) intends to bring some sort of Foreign Intelligence Surveillance Act (FISA) reform bill to the House floor. As it stands now, Section VII of FISA—of which the serially abused Section 702 program is a key part—is set to expire on April 19 unless Congress renews it. Given the multiple legislative meltdowns in the House since the start of the year—the failure to pass aid bills for Ukraine, Israel, and Taiwan that can clear the Senate, as well as the failed impeachment of DHS Secretary Mayorkas—it’s no surprise that the House GOP leadership is looking for any kind of legislative win.

But when Congressional leaders act out of political desperation is usually when bad law gets made, and that’s especially been true of giving executive branch agencies and departments radically expanded surveillance powers in the post‑9/​11 era.

It’s worth remembering that in the fear‐​filled aftermath of al Qaeda’s deadly terrorist attacks on our country, Congress passed the sweeping and also frequently abused PATRIOT Act less than two months after that terrible day—and before the Congressional Joint Inquiry to investigate the attacks had even been constituted, much less issued any report. And as became apparent in the years after its enactment, the Section 215 telephone metadata surveillance component of the PATRIOT Act was both repeatedly abused and ineffectual before it was finally terminated in 2019.

The same was true of the illegal STELLAR WIND mass electronic surveillance program started under George W. Bush’s administration in the days immediately after the September 11, 2011 attacks, as I’ve previously noted in Senate testimony.

Indeed, it was the exposure of that program in December 2005 by the New York Times that led to the creation of the FISA Section 702 program in July 2008. Because executive branch officials made false claims of legality and effectiveness about the PATRIOT Act Section 215 program and STELLAR WIND, Congress should be just as skeptical now about Biden administration claims that previous FISA Section 702 abuses have been curtailed.

Department of Justice (DoJ) officials tout internal FISA Section 702 database query audits as evidence that their reforms are working and that there’s no need for additional congressional legislative reform action on the program. These internal audits are designed to catch potential improper searches of the FISA Section 702 database by FBI personnel. But data related to those audits have only been released in summary form; the underlying audits themselves have never been made public.

Thus, there is at present no way for Congress or the public to judge whether the Administration’s summarized claims of Section 702 compliance and database query audit efficacy are in line with the actual audit findings themselves.

Last June, the Cato Institute filed a Freedom of Information Act (FOIA) request with the DoJ seeking the release of the underlying FISA Section 702 database query audits. This week, after waiting in vain for over eight months for the DoJ to comply, Cato filed a lawsuit in DC federal court to compel the release of the audits.

The fact of the matter is that in light of the past false executive branch claims of legal propriety and operational effectiveness of multiple post‑9/​11 surveillance programs, we’ve learned the hard way that those claims cannot, and should not, be taken at face value. Cato is doing what it can to help Congress do its job, but the House and Senate should themselves demand that those audits be made public before any vote to reauthorize the Section 702 program. Anything less would be a disservice to the voters whose rights they took an oath to protect.

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