On FISA, What Is DoJ Hiding?

Patrick G. Eddington

Last June, the Cato Institute filed a Freedom of Information Act (FOIA) request with the Department of Justice (DoJ) seeking the underlying internal FBI audits of its own compliance with the Foreign Intelligence Surveillance Act (FISA) Section 702 program. Months went by. Via email, I asked the DoJ FOIA office what the hold‐​up was. In October 2023, they said they’d identified the records and would send them to the FBI for review. More months went by with no records.

Earlier this year, Cato filed a FOIA lawsuit and a preliminary injunction seeking the release of the records. Our intent was (and remains) to make those records public once they’re in our hands. We wanted those records made public before any final vote on the FISA reform legislation currently pending before the House is acted upon.

As a former House staffer, I’m old‐​fashioned that way—I believe Members should have the full facts before voting on a bill that might compromise the Fourth Amendment rights of Americans. And action on FISA will take place this week in the House.

Late on Friday, April 5, the federal district court finally released the oral argument transcript in Cato’s FOIA case, which you can read here. As you can see for yourself, DoJ officials admitted publicly what they’d told me privately: they’d identified and segregated the records for review in October 2023 but never actually reviewed them. DoJ officials claimed to the court that it was due to staffing shortages, which Judge Tanya Chutkan clearly thought was a lame response. Even so, Chutkan has yet to rule on Cato’s PI. As a result, House and likely Senate members will be voting on a critical surveillance authority without having the full facts about it, and the DoJ will have gotten away with literally violating the law (i.e., FOIA) in the process.

Episodes like these demonstrate why current federal officials cannot be trusted to protect the constitutional rights of Americans.