Wyden and Schiff demand release of withheld FISA court opinion

Senators Ron Wyden and Adam Schiff sent a letter Monday to Director of National Intelligence Jay Clayton and Attorney General Todd Blanche demanding the release of a classified Foreign Intelligence Surveillance Court opinion, after Section 702 of the Foreign Intelligence Surveillance Act lapsed in June and the statutory deadline to declassify the opinion passed on September 13.

CyberScoop and The American Prospect reported that a Foreign Intelligence Surveillance Court judge wrote the opinion in March and objected to government filtering tools that analysts use to process messages. The judge’s concern covered a filtering system that let analysts obtain Americans’ information in a way that should count as a query of Americans’ information and receive extra protections. Under Section 702, warrantless searches of foreign targets’ communications can use Americans’ personal information.

Section 702 lapsed in June, but companies did not stop complying because the law is clear, according to Elizabeth Goitein of the Brennan Center for Justice. A court ruling keeps collection authority running through March 2027, and the Brennan Center said the certification remains in effect until March 2027. The government must file an application before March 17, 2027, to prevent a real lapse, making that date roughly the deadline for Congress to renew the authority.

The Office of the Director of National Intelligence reportedly warned Congress that Section 702 will go dark if lawmakers fail to pass a clean reauthorization by Nov. 20. Elizabeth Goitein said, “Congress has plenty of time to get that done, and there is no practical reason for trying to rush something through by November.” Filing an application automatically extends existing certifications until the Foreign Intelligence Surveillance Court rules, and the government files a draft application 30 days before the final one.

Congress can temporarily extend existing certifications for a brief period, and a short-term extension without reforms would allow new yearlong certifications, which the Brennan Center characterized as a clean one-year reauthorization. A grandfathering provision requires companies to keep complying through March 2027 even after the program lapsed.

Wyden and Schiff wrote in their letter that “As Congress continues to debate the fate of this authority, lawmakers must be able to discuss these abuses openly.” The groups said Congress must stop relying on executive branch self-policing and approve Section 702 only if a warrant requirement applies to Americans’ private communications. They also said Congress must not back any reauthorization while the administration withholds legally required information, and that withholding the opinion should kill reauthorization of the expired surveillance law.

Wyden previously called the opinion evidence of major compliance problems and blocked a short-term reauthorization unless officials agreed to release it. Blanche earlier pledged to release the declassified letter to lawmakers before the legal deadline. A spokesperson for Senate Intelligence Chairman Tom Cotton did not respond to a comment request, and the Office of the Director of National Intelligence and the Justice Department did not reply to comment requests right away.

At his July confirmation hearing, Attorney General Todd Blanche testified that DNI and the Justice Department were working diligently to declassify the opinion and expected public release before the statutory deadline. Neither agency said whether it invoked the waiver under U.S. code allowing withholding to protect national security, classified sources or intelligence methods. Rachel Cohen, a spokesperson for Vice Chairman Mark Warner, said Warner supports transparency and had urged Gabbard in March to declassify the March 17 opinion.

The statutory deadline to declassify the opinion passed on September 13, and both sources mark this as the legal deadline. Senate Intelligence Committee leaders had anticipated the opinion would be declassified and released by May 15.

A 15-day commitment secured by Ron Wyden from Senators Tom Cotton and Mark Warner passed on a Friday without any declassification, and a Saturday deadline to declassify a surveillance court opinion showing continuing Section 702 violations passed without action by the Trump administration.

Section 702 lets the CIA, NSA, FBI and other agencies collect and analyze overseas communications without a warrant while incidentally sweeping up Americans’ communications with foreign targets. A 2024 court order found FBI officials repeatedly violated their own standards in searches tied to the Jan. 6, 2021 Capitol attack and 2020 racial justice protests.

Even members of Congress have been subject to warrantless backdoor searches, and a 2023 Privacy and Civil Liberties Oversight Board report found little national security value in warrantless backdoor searches involving U.S. persons. At a Senate Judiciary Committee hearing, FBI Director Kash Patel said the FBI does not collect on U.S. citizens and that a dark program would leave the FBI with problems tracing information.

Demand Progress is part of a bipartisan coalition pressing Congress to close legal loopholes that allow the government to circumvent courts when surveilling Americans. Hajar Hammado said, “The failure to meet the promised declassification deadline shows that the Trump administration intends to enter the next FISA negotiations in bad faith.”