Did DOJ Mislead Federal Court to Get FISA Renewal? – Daily News

Americans have become accustomed to the government providing the public with misleading or dishonest information. However, the recent filing of false testimony by the Justice Department in federal court could have serious consequences for our constitutional rights in the future.

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

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

Why would Justice mislead a judge to slow down the audits Cato requested? Because Congress and the public were debating whether the program should continue or be terminated before its April 19, 2024, expiration date. By keeping the program audits out of the public eye, Justice shielded the program from criticism that could have sunk the oversight program.

Since its inception in July 2008, the FISA Section 702 surveillance program has been repeatedly misused to spy on Americans, despite its supposed status as a “foreign intelligence” collection program. Scandals surrounding the 702 program nearly led to its end last year.

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

Additionally, the January-March 2022 audit provided to Cato includes a single sentence mentioning a 702 breach involving “122 queries conducted by a single user that NSD was unable to fully investigate due to the user leaving the FBI prior to query review.”

This incident is not mentioned in the PCLOB’s 2023 FISA Section 702 Compliance Report, raising questions about how many similar Section 702 violations were or may have been committed by then-FBI employees who subsequently left the Bureau before their actions were discovered.

At this point, Cato has no indication that the Justice Department’s attorney at the March 15, 2024 preliminary injunction hearing knew that the audit declassification review had been completed well before the hearing. However, if the Justice Department were to comply with its legal obligations under FOIA and release the Cato records by the requested date of March 29, 2024, I would immediately make those audits and their findings available to the House and Senate Judiciary and Intelligence Committees, and other interested House or Senate committees or members, to assist them in their deliberations on whether to renew the 702 program or let it die.

The revelation that Justice attempted to reclassify negative information about prior 702 violations was not only alarming, but was in direct violation of the executive order governing the classification of federal documents. This is especially egregious given that the FBI’s serial 702 violations had previously been disclosed by the Surveillance Court and the Oversight Board.