transcript

Speaker 1:
[00:04] Welcome to the Cato Podcast. I'm Patrick Eddington, Senior Fellow here at the Institute.

Speaker 2:
[00:09] And I'm Maria Sofia, Manager of Government Affairs.

Speaker 1:
[00:12] So we're here to talk about the ever unpopular Foreign Intelligence Surveillance Act, Section 702 program, which this April, 2026, is once again up for reexamination, renewal, whatever term of art you want to use here. And for those who may not have the full background in this particular program, it began its life as a completely secret and totally unconstitutional program literally hours after the 9-11 attacks over almost 25 years ago now, which is really kind of astonishing. And in that particular circumstance, the then Director of the National Security Agency, General Michael Hayden, ordered his folks at the National Security Agency, NSA, to go ahead and start monitoring every bit of the traffic, the communications traffic between the United States and Afghanistan. The problem with that order was that it was a direct violation of the 1978 edition of the Foreign Intelligence Surveillance Act. They weren't supposed to be doing that. So this thing became a classified monster within a month of Hayden giving that order. It actually had a specific name. That name was Stellar Wind. And it would be the better part of four years before the American public would find out that not just were communications between Afghanistan and the United States being monitored, but communications between Americans and foreigners generally were being monitored one way or the other. And that was courtesy of James Risen and Eric Lischblau when they were reporters at the New York Times and they broke that story in December 2005. And after that happened, it put the Congress on a two and a half year odyssey of trying to take a mass electronic surveillance program and make it comply with the Constitution's no probable cause, no warrant, no exceptions language, essentially. And it has never really been genuinely fully compliant. Courts have basically, at least at the appellate level and down, have said yes, essentially, it does basically comply with the Fourth Amendment. I think that's, in my opinion, that's just wrong. It's just simply legal fiction and I'm hardly alone in that. But we've had multiple reauthorizations of this thing since it was passed in July of 2008. The last was literally two years ago, almost to the day two years ago as we do this particular podcast. And in this past week or so, those among us who are surveillance reformers had at least a tactical victory on the House floor. And I want to let my colleague, Maria, who handles this portfolio for me with the House and Senate members, I'd like for her to go ahead and kind of describe the insanity that we went through last Thursday and into early Friday.

Speaker 2:
[03:01] Yeah, so I think, well firstly, FISA has become more and more of a bipartisan issue. And we've seen members from across the aisle come together and in the most, as they say, the unlikely bedfellows. And so working with both sides of the aisle and trying to broker essentially some sort of reform that everyone can agree on, I think has been something that we've both, I know you and I, as long as I've been here, have really focused on. And so to see what kind of came out of last week, which was the House didn't get what they wanted, at least House leadership. And now we're seeing pushes for the reforms that you and I have been advocating for for years, particularly with a warrant requirement and criminal penalties. And so now, because that is on the table, we have an opportunity for reform here on both sides of the aisle. So I think, Pat, firstly, I think I want to just kind of get into on your end, what would reform look like, like steady reform, but specifically, how does FISA fit into that broader libertarian framework on government power? So how do we as libertarians advocate for good reform in this way?

Speaker 1:
[04:25] Well, I think to kind of go back to what you were talking about with respect to some of the members and how the members have been kind of re-evaluating, we've had quite a few flip-flops so far by people who claim to be liberty-centric. Let's take the chairman of the House Judiciary Committee, Jim Jordan of Ohio, who actually two years ago was a leading champion of a warrant requirement for this kind of information, and now has definitely been on the flip side of that. And at the same time, Jamie Raskin, Democrat of Maryland, when Biden was in office in 2024, shocking. Raskin thought that the bill that was drafted in 2024 was probably going to be sufficient. He is definitely of a different frame of mind now. I think what aggravates me about all of this at the end of the day is that I've never viewed this as a libertarian or conservative or progressive issue. This is a bill of rights related issue. This is foundational essentially to how the country is supposed to operate. And for those who may be wondering, okay, you guys are talking about warrant requirement, warrant requirement, what exactly do you mean? Well, it's really pretty simple. I mean, the Fourth Amendment makes it very clear that no warrants shall issue except based on probable cause. And that's before that provision, that Fourth Amendment provision means you have to have a basis for probable cause that a crime has been committed before you're actually going to be able to go and search somebody's premises, their car, yada, yada, and seize anything that they might have, right? The way that the 702 program works is that the government is allowed to go in two different directions. The first is to internet service providers to get data. But the second way, and this is the more pernicious way, ultimately, is they can go against what's known as the internet backbone. So in other words, the actual infrastructure of the internet itself, the routers, the cable infrastructure, all the rest of that kind of stuff. So think of it essentially as like a digital vacuum cleaner. And they are literally pulling this stuff in, and they are putting it in databases at the National Security Agency and elsewhere. And what the government has argued for 18 years is that, well, because that was lawfully acquired under the Foreign Intelligence Surveillance Act, Section 702, they have the ability to go in and search this data, you know, when they essentially feel like they have reason to do so. So that's a post-facto application, essentially. And so what reformers have really been trying to do for the last dozen plus years is get at least a warrant requirement in place, a probable cause-based warrant requirement in place, that would require them to get such a warrant from a federal judge before they actually access any kind of stored communications of Americans. That is still not and would not be a genuine Fourth Amendment compliant architecture, if you will, legal architecture for dealing with this. But that's what a lot of surveillance reform advocates have kind of focused on. And one of the things that the Privacy and Civil Liberties Oversight Board had said before Trump destroyed it in 2025 by sacking all the Democratic members on it, which is something that's still in litigation before federal courts now. But what the Privacy and Civil Liberties Oversight Board said in their 2023 report, was that the National Security Agency had never even made an effort despite the board pushing them to do so, to see if they come up with a technological way to figure out, what's foreign to foreign traffic, right? Which would be completely open for exploitation by NSA, versus US to foreign or foreign to US traffic, where an actual US person's data, somebody who is actually covered under the Constitution's Fourth Amendment, is being exploited. They haven't even made the attempt to try to figure that out. And there's really good reason to believe that with some effort, they would actually be able to figure that out. And so that to me is one of the other critical things that actually has to happen going forward is there needs to be a mandate. And I don't know whether this just targets NSA by itself, or whether you kind of open it up to the larger telecom and policy community to come up with a particular kind of software, algorithm or whatever that could actually make those differences. Find the foreign to foreign versus the foreign to US, then segregate the foreign to US, and then figure out whether or not there's a there or there that actually should require a warrant to get access to the data itself. So those are among the things that are kind of going on. But it's been true of this entire process since 2008, that you've had very, very kind of liberty centric people on both sides of the political aisle, the two major political parties, who've come together over this kind of stuff. So you get a guy like Tom Massey of Kentucky, Congressman Tom Massey, arguably the strongest in the House of Representatives, certainly, arguably the strongest Bill of Rights advocate in there. Then you get him paired up with somebody like Zoe Lofgren, Democratic of California, who represents Silicon Valley. And it's been two and a half years ago almost, that they collaborated together in the House Judiciary Committee to get a great bill out with a 35-2 vote. I mean, it was an overwhelming kind of backbencher vote in favor of this kind of thing. And unfortunately, that bill was never allowed to come to the floor by House leadership.

Speaker 2:
[10:13] Yeah, and I think that's where this is the kind of the politics of this gets kind of murky. But I want to talk a bit about FISC, which is something you've written about a lot, which is the Foreign Intelligence Surveillance Court. Because a lot of people don't realize that while, you know, Liberty Advocates have been saying we need to have this Fourth Amendment provision in there to protect and have the warrant requirement, frankly. But the FISC court is a whole other issue when it comes to these warrants. And so Pat, could you talk about some of the structural problems? Because we've seen over the last couple of years, reports come out of the misuse of this court. And what is the core issue that it's facing? Is it the secrecy of it? Is it the absence of process? Is it maybe the judicial process of it all? Or is it something else?

Speaker 1:
[11:03] So this is the Foreign Intelligence Surveillance Court. And there's also an appellate version of it, the Foreign Intelligence Surveillance Court of Review. All of this was created originally when FISA, the original FISA, what we call Title I, what was originally Title I of FISA, was enacted in 1978. And in the 702 program, you know, the Foreign Intelligence Surveillance Court's role is really just ultimately looking at minimization procedures, you know, how they actually suppress information, how the FBI, NSA, CIA suppress US person-related information or try to avoid essentially collecting it. And then looking at the procedures ultimately. And then also, to some degree, potentially novel questions that might come up, you know, in a legal context. But what the Foreign Intelligence Surveillance Court does not do, in contrast, you know, to a typical Article III criminal court, is actually, you know, approve individual warrants. And that's always been, at least as far as I'm concerned, you know, one of the real problems. The secrecy is the second problem, right? I mean, all this takes place behind closed doors, you know, and there are those who would make an argument that you can't have a system like this in any kind of judicial process, unless you have a level of secrecy surrounding it. And, you know, there's some merit to that argument. But what's almost invariably absent in any of these FISC proceedings or even at the FISC-R level, is any kind of adversarial process, like you'd actually have in a regular Article III criminal court. You know, there's no discovery that's involved in that respect most of the time, unless, and this is where things get kind of interesting, unless there's a circumstance where they decide, the government decides they want to use 702-derived information in the prosecution of an individual under a particular criminal statute. So in the case of Agron Hazbazrami, an individual who was arrested, I think it was originally in 2011, for allegedly wanting to go overseas and help out a particular foreign group engaged in one of the many conflicts in the Middle East. The government used 702 to track him, his communications, all the rest of that. But what they failed to do was disclose to the court at the very beginning that in fact they had conducted these FISA Section 702 database searches that I've talked about previously. And so when that came out, Mr. Hazbazrami's counsel immediately appealed his conviction and all the rest of that. This goes all the way up to the Second Circuit. And the Second Circuit does not disallow the information. So normally you would have something along the lines of a fruit of the poisonous tree argument. If they got the information surreptitiously in a normal Article III court kind of situation, they failed to disclose it, that would probably ultimately wind up getting the case tossed. It would mentally be challenged, but probably tossed. But in this particular circumstance, the court said, no, we're not going to throw out the conviction, but we want the district court to go back and examine the question of whether or not this use of the 702 database constituted a separate search under the Fourth Amendment. And so Judge Hall, the district court judge in the Eastern District of New York, who had this case, went back and engaged in a very detailed examination of all these questions. And she concluded in an opinion in late 2024 that in fact, a 702 database search does constitute a Fourth Amendment related search requiring a probable cause based warrant. This was not made public. The actual decision was not made public until the day after President Trump was inaugurated for his second term as president. And so that decision stands, but it's only applicable in the Eastern District of New York. I think if it were to come up again somewhere within the Second Circuit, folks would certainly cite that decision and basically try to use that as a way to get a conviction or a prosecution invalidated. But it's a question that the Supreme Court itself has never had to wrestle with. And in this debate that you and I witnessed last week, Maria, it just, I didn't see it come up. I didn't see this particular case come up, and I was kind of shocked by that. When Mr. Raskin was in front of the rules committee trying to argue for a probable cause-based warrant amendment to be made in order for the floor debate, I was really kind of surprised that he didn't bring this case up.

Speaker 2:
[15:47] I think part of it, too, is the timing of it all. I mean, you and I both know in that debate started like 1130 at night, and they wanted to keep debate short, quick, and they were out of there. It was 2.30 in the morning, but to us, obviously, it's super late, but at the same time, that's really short for a floor debate. But I also think they were anticipating that there would be more debate on this issue. They knew going in, I think, that this was only a battle, this was not the end of the war, and that they were going to be able to talk about this further. And so I expect that we'll see some more on that, especially as we find here later on this week, what some of those drafts look like for the extension. But to your point, we always hear this phrase that FISA 702, it's indispensable for counter-terrorism. We need this, and as you mentioned at the top of the podcast, that we are now seeing this in a post-911 world and all of these reasons for it. And you highlighted why that argument's been watered down now because of all of the different ways they're working way around it. So, and we talked about the bipartisanship around this, but I want to know, Pat, in your opinion, what does realistic reform look like right now? I mean, we've got essentially basically a week until this expires again, unless they re-auth it. So, what are some tangible, realistic reforms that can be done maybe now in the interim and then full, and then we can talk about maybe some longer reforms down the road?

Speaker 1:
[17:30] So, the only reason that we're having this debate right now is because a sunset provision, in other words, an expiration date, has been attached to this particular surveillance authority. And, for me, at the top of the agenda, even before a warrant requirement, quite frankly, is ensuring that this thing is only renewed for another two to three years at the outside. Because it's been interesting in this debate that we just went through, this first round debate, the deal they were trying to sell was, in essence, you know, we will go ahead and we will insist the NSA, you know, look at the very front end of the collection process. And, you know, they need to kind of have some kind of semi-warrant type requirement. That's really what it worked out to, right? I mean, that was like the Higgins proposal and some of the other proposals that were out there. And then the manager's amendment proposal, obviously. But in terms of what's actually possible, I think that really comes down to how much members are willing to dig in their heels on this one. And I think this 18-year period, it's been kind of a war of attrition, if you will, in terms of trying to get this thing reformed, right? And so there's been so much scandal, so many things. I mean, you know, when this program is used by an FBI agent to look at information on 19,000 donors to a sitting member of Congress, that alone should have led to the cancellation of the program wholesale. I mean, that should have been the endpoint, really, for the entire debate. But it hasn't been, because people, there are hawks on this kind of thing. Let's say like Tom Cotton, a senator from Arkansas, others make an argument that this is a particular authority that is, you know, vital to national security of the United States. Well, the most sensitive communications of the governments of Russia, of China, of Iran, of North Korea, they're not going over commercial phone lines for the most part, right? Terrorist organizations, you know, are using commercial infrastructures, you know, and that is where this particular authority, you know, ostensibly maybe has some merit. But here's the thing, in the 18 years that this program has been in existence, they can only publicly cite two instances where it might, might have played a role, essentially, in derailing a particular attack. One involved Najibullah Zazi and a potential attack on New York City. And the other more recent thing was the statement by folks in the administration in Trump 2.0, that this authority was actually pivotal in stopping an attack on a Taylor Swift concert over in Europe. The problem is we don't have any of this data public. We don't, you know, we're not in a position to say whether or not that's actually true. And that's because the surveillance oversight infrastructure has literally been destroyed by this administration. The P club is not really functional. They have one person left, and otherwise it's a staff appointed by Trump that's running the show there. The office of internal audit at FBI was abolished by Cash Patel in 2025. So that's gone. And the inspectors general kind of across the intelligence community, of course, have all been replaced by Trump. And so there's no genuine independent audit mechanism. And my view is if they're going to have any kind of back end audit on 702 compliance going forward, and I think that has to be like item three minimally in here. So sunset date, warrant requirement, and back end audit to ensure compliance. That audit mechanism has got to be the government accountability office. Because when Cato asked Mr. Raskin, as well as Nancy Mace, Republican of South Carolina, to look into a totally separate FBI program called Assessments, you can have a separate podcast on that if folks are interested. When the government accountability office was tasked to look at that, they came back and found that that particular authority the FBI has, investigative authority called an assessment, has been used to go after journalists, to go after politicians, to go after academics. The list just goes on and on and on. And that was a report that had not been made public. But Ryan Lovelace at Racket News managed to get it out and that's why we know what the GAO actually found. So GAO, they've done work like this in the past. In the Church Committee era, GAO looked at the FBI's investigative practices back then. That's kind of where I got the inspiration for making that suggestion to Raskin and Mesa staff. And it paid off. And that's why I'm a big believer in using GAO for this stuff, because it's not the executive branch that controls it, it's the Congress. And I think that's exactly what the framers had in mind.

Speaker 2:
[22:22] So as we kind of wind down, if you're a betting man, Pat, what do you think? April 29th, we're working on this still? Or do you think that we get another extension and we're having this conversation for another six months?

Speaker 1:
[22:36] I mean, I think it's a live possibility that we go through anywhere from one to three more iterations like this. You know, I think you and I both have been seeing the press reporting from Politico and Punchball News and some other outlets, that the Senate now may try to take up its own version of this thing and try to send something over to the House. So, you know, the one thing that I think you and I both know, members hate having to vote on this issue.

Speaker 2:
[23:07] Yes.

Speaker 1:
[23:08] They would really prefer to move on to something else. But, you know, thanks to people like Representative Massey and Andy Harris of Maryland and from your stomping grounds. And, you know, some other folks on the Democratic side, including Mr. Raskin and some others, you know, who I think have finally come to the conclusion that this program is so utterly out of control that some real safeguards need to be put into it. And some actual, you know, constitutional compliance, you know, finally, it gets worked into the equation here. But, you know, we'll have to see. All I can say right now is stay tuned.

Speaker 2:
[23:45] Yeah, I think that's the biggest thing. But I think you and I are both hopeful. We always are cautiously optimistic at this time because we see all these amendments get thrown around and even some of, in the case of this week, like potentially some companion bills to kind of help it. So yeah, I think time will tell and we'll have to see whether or not this extension happens again. And we're having this conversation again in December or, you know, next year. But yeah, I think this has continued to become more and more of a bipartisan issue. And I think that's really healthy, honestly, for democracy, when we can see policy being from both sides of the aisle saying, hey, like, we need to fix this and, but fix it in a way where there are tangible reforms that are going to have a lasting impact and where we're not coming back to this, you know, five, 10 years later, trying to fix it all over again.

Speaker 1:
[24:37] Yeah. Well, I think we can leave it there for now. I'll just say again, you know, stay tuned. More to come for the Cato Institute. I'm Patrick Eddington.

Speaker 2:
[24:50] And I'm Maria Sofia.

Speaker 1:
[24:51] See you next time.