Push for Declassification of FISA Court Opinion by DNI Gabbard
Director of National Intelligence Tulsi Gabbard is actively seeking to declassify a contentious FISA court opinion that expresses concerns about federal search practices under Section 702 of FISA.
When Congress was about to temporarily reauthorize Section 702 of the Foreign Intelligence Surveillance Act, Senate Intelligence Committee Chairman Tom Cotton (R-AR) remarked, “I hit it.” The agreement with Sen. Ron Wyden (D-Ore.) involved sending a letter to Gabbard and the Justice Department, urging for the declassification of the 702 opinion.
The Brennan Center for Justice disclosed that in August 2024, the Justice Department discovered that the FBI had been using a “filtering tool” that allowed it to discreetly search Section 702 data. This practice meant inquiries regarding Americans were not being counted or audited, defying legal requirements. Moreover, the FBI reportedly failed to document the justifications for these queries or secure the necessary attorney or supervisor approval. The Justice Department informed the FISA court that it disabled this tool in early 2025.
While Section 702 is intended for monitoring foreign adversaries, it paradoxically allows for the unwarranted surveillance of Americans, infringing on Fourth Amendment protections.
According to reports from the New York Times and Washington Post, the unclassified opinion from the FISA Court (FISC) issued in March raises significant questions about intelligence agencies’ surveillance processes, which can bypass the regulations laid out by previous reauthorization legislation, the Intelligence Reform and American Security Act.
The FISA court opinion suggests that the FBI may have access to similar tools that could undermine safeguards concerning American surveillance.
The Brennan Center stated that despite the Justice Department’s shutdown of certain filtering tools in 2024, the FBI was still using other similar query tools without adhering to the RISAA guidelines. This issue isn’t confined to the FBI; it extends to the NSA and CIA as well. Apparently, similar tools have been deployed to access Section 702 data concerning Americans’ communications. Consequently, this suggests ongoing, systematic violations of existing legislation, leaving many queries concerning U.S. persons incomplete and potentially undetected.
Declassifying the FISA court’s opinion could provide crucial insights for Congress and the public regarding surveillance mechanisms and possible reforms to better safeguard Americans’ privacy.
As Section 702 of FISA is set to expire on June 12, Congress is grappling with challenges in reaching an agreement on its reauthorization.
A spokesperson for the DNI shared that the FISC’s classified opinion has been communicated to all Congress members and relevant committee personnel. The ODNI is collaborating with the entire intelligence community and the Department of Justice to expedite the declassification while protecting sensitive sources and methods. They hope to share the review with the public once it’s finalized.
Intelligence officials have informed that the ODNI is in close contact with Congress about the declassification review process, which is reportedly intricate and filled with classified content. The statute allows intelligence agencies 180 days to conduct a classification review of the FISC opinion, and the ODNI emphasizes the need for speed and caution to protect national security interests.
The Brennan Center emphasized that the actual count of U.S. person queries from 2024 remains unknown, largely due to the FBI’s classification practices.
“Given the extent of classified information, it’s essential that the ODNI’s declassification process is handled meticulously and in coordination with relevant Intelligence Community agencies,” Cotton expressed. “I trust ODNI will act swiftly while safeguarding our sources and methods.”
Wyden added, “Congress cannot reauthorize Section 702 without an open discussion about how this surveillance law affects Americans’ constitutional rights. This necessitates declassifying the FISA court’s opinion on serious violations concerning these rights, which the government must legally disclose.”
He further criticized the DNI, saying, “Chairman Cotton and Vice Chairman Warner set a clear deadline for declassification to inform discussions on reauthorization. The DNI missing this deadline—and even failing to acknowledge it—reflects a troubling disregard for Congress and a commitment to withholding critical information from the public about surveillance.”
