Did the Justice Department mislead a federal court to secure FISA renewal?

Americans are used to the government providing misleading or dishonest information to the public at large. But the Justice Department recently providing incorrect testimony to a federal court could have serious ramifications for our constitutional rights moving forward.

This year, the Cato Institute filed a Freedom of Information Act lawsuit against the U.S. Justice Department’s National Security Division, seeking information on potential abuses in the Foreign Intelligence Surveillance Act’s (FISA) Section 702 program.

At a preliminary injunction hearing on March 15 this year, Justice claimed it would be “impracticable” to provide audits of the Section 702 program to Cato by March 29. However, Cato’s analysis of the recently released but still heavily redacted audits shows that their declassification review was completed by March 5, or 10 days prior the hearing before D.C. Circuit Judge Tanya Chutkan.

Why would Justice mislead a judge in order to slow-walk the audits Cato had requested? Because Congress and the public were debating whether the program should continue or be terminated prior to its then-expiration date of April 19, 2024. By keeping the program audits out of public view, Justice was shielding the program from criticism that could tank the surveillance program.

Since its inception in July 2008, the FISA Section 702 surveillance program has been repeatedly abused to spy on Americans despite its ostensible status as a “foreign intelligence” collection program. The scandals involving the 702 program nearly resulted in its termination last year.

Cato filed its FOIA lawsuit on February 8 of this year, after months of requesting the records from Justice. When the audits were finally provided to Cato, they contained redactions to 702 program violations by FBI agents that were made public in a partially declassified 2021 Foreign Intelligence Surveillance Court opinion from September 2021, as well as the 2023 Privacy and Civil Liberties Oversight Board FISA Section 702 oversight report released in September 2023.

Additionally, an audit covering the January to March 2022 timeframe provided to Cato contains a single sentence mention of a 702 program violation involving “122 queries conducted by one user that NSD was unable to fully investigate due to the user’s departure from the FBI prior to the query review.”

This incident is not mentioned in the PCLOB’s 2023 FISA Section 702 compliance report, and it raises questions as to how many similar incidents of 702 violations were or may have been committed by then-FBI employees who subsequently left the Bureau before their actions were discovered.

At this time, Cato has no information as to whether or not the Justice attorney at the March 15, 2024, preliminary injunction hearing was aware that the declassification review of the audits had been completed long before the hearing But had Justice fulfilled its legal responsibilities under FOIA and released the records to Cato by the date requested, March 29, 2024, I would have immediately shared those audits and the findings contained within with the House and Senate Judiciary and Intelligence Committees, along with any other interested House or Senate committees or Members, to help inform their deliberations over whether to renew the 702 program or let it die.

The revelation that Justice was attempting to reclassify derogatory information about prior 702 program violations was not only alarming but is a direct violation of the executive order governing the classification of federal records. It is especially egregious given that the FBI’s serial violations of the 702 program had previously been made public by the Surveillance Court and the Oversight Board.

Cato’s litigation in this case is ongoing, and we have filed a new FOIA seeking not only the 702 query audits conducted since June 9, 2023, but also the relevant records about how the existing FOIA case was handled. But even without that additional data, one thing is clear: every judge on the federal bench needs to reevaluate any presumption of regularity by executive branch officials when dealing with cases that involve government surveillance threats to the First and Fourth Amendment rights of Americans.

Former CIA analyst and ex-House senior policy advisor Patrick G. Eddington is a senior fellow at the Cato Institute.