Patrick G. Eddington
For the second time in as many years, the Cato Institute has sued the Department of Justice (DoJ) and the Federal Bureau of Investigation (FBI) for internal records regarding the Bureau’s use (or misuse) of Section 702 surveillance powers of the Foreign Intelligence Surveillance Act (FISA). First, some background.
This particular surveillance power, the legalized version of the previously illegal post‑9/11 STELLAR WIND program, has been serially abused since its creation in 2008. Last year, Cato filed its first FISA Section 702-related lawsuit after the DoJ slow-rolled a Cato Freedom of Information Act (FOIA) request seeking internal DoJ and FBI records regarding the number of times FBI agents had improperly searched electronically stored data on Americans swept up under the Section 702 program. The first lawsuit gained urgency as the deadline for Congress to renew or let die the Section 702 program approached in April 2024.
However, the DoJ failed to turn over the requested records before Congress voted to extend the Section 702 program through late April 2026. It was not until July 2024 that the DOJ finally produced the records at issue—despite the fact that the records had been declassified by the DOJ almost five weeks before the April 2024 congressional vote on Section 702’s renewal. Given the abuses chronicled in those records, had they been made public prior to the congressional votes on the program, the Section 702 authority might well not have been renewed.
It’s long been well established that at least one person connected to President Trump’s first presidential campaign was improperly targeted in 2016 using a different FISA authority. What’s also long been known is that the kinds of abuses that led to that improper investigation (code-named CROSSFIRE HURRICANE) were far more widespread within the Bureau’s field offices than anyone realized. In light of those facts, one would think that Trump’s newly installed leadership at the DoJ and the FBI would be reevaluating the wisdom of continuing surveillance programs like FISA Section 702 and working to release more data about the problems with the program.
Instead, earlier this year, the FBI flatly refused to release any data to Cato about potential FISA Section 702 abuses that occurred between August 16, 2024, and January 24, 2025 (the date range contained in Cato’s FOIA request)—a refusal that has not triggered Cato’s second FISA Section 702 query audit incident records lawsuit.
In connection with the FBI’s aggressive “no records for you” stance, I think it’s worth noting that during his Senate confirmation hearing in January, then-FBI Director nominee Kash Patel stated he opposed a probable cause-based warrant requirement for FBI agents to access stored Section 702 data. Current CIA Director John Ratcliffe likewise expressed opposition to such a requirement during an appearance before the Senate Select Committee on Intelligence. Thus far, Attorney General Pam Bondi has not weighed in on the issue.
Two things are certain. The first is that the FISA Section 702 program is set to expire in late April 2026. The second is that the kind of public interest FOIA litigation Cato is engaged in on this case may be the only way the American people get a sense of whether the Trump-controlled FISA apparatus is keeping us safe from terrorists or is being used to target us, and thus should be allowed to expire.