Nearly two weeks after the September 13 statutory deadline, the Trump administration still has not released a potentially damning Foreign Intelligence Surveillance Court opinion. The March ruling identified serious problems with tools used to filter intelligence queries involving people who communicated with foreign intelligence targets.

Section 702 of the Foreign Intelligence Surveillance Act permits agencies to collect communications from foreign nationals abroad, but it does not authorize spying on American citizens. In practice, agencies including the FBI and NSA have accumulated extensive communications data belonging to Americans, accessible without a warrant.

FISC opinions containing significant legal interpretations must undergo a declassification review and be released within 180 days. That responsibility belongs to the Office of the Director of National Intelligence, now led by former federal prosecutor Jay Clayton, and the Justice Department’s Office of the Attorney General.

Despite missing that deadline, the DNI has reportedly warned Congress that Section 702 will “go dark” unless lawmakers approve a clean reauthorization by November 20. The Brennan Center for Justice says the existing FISC certification actually remains valid until March of next year.

That leaves the administration pressuring lawmakers with a supposedly urgent deadline while withholding information about whether intelligence agencies are violating Americans’ constitutional rights. Privacy advocates say it is the same tired scare campaign repeatedly used to manufacture urgency around Section 702.

“The administration’s failure to follow the law on disclosing what is reportedly quite a damning FISA court opinion is just further evidence of why the internal self-policing reforms that have been put forward by surveillance hawks in Congress are not sufficient, and why there needs to be a warrant requirement,” Elizabeth Goitein, senior director of liberty and national security at the Brennan Center for Justice, told the Prospect.

U.S. code allows the government to waive declassification when necessary to protect national security, classified sources, or intelligence gathering methods. Even then, the attorney general must issue a public statement “summarizing the significant construction or interpretation of any provision of law” contained in the opinion.

Neither responsible agency told the Prospect whether the waiver had been invoked, and no required public statement had appeared. The silence continued despite earlier assurances from U.S. Attorney General Todd Blanche that officials were working to release the opinion.

At his July confirmation hearing, Blanche testified that the DNI and Justice Department had been “working diligently with the intelligence community” on declassification. He said they “anticipate being able to make the public release in advance of the statutory deadline.”

That testimony followed an expectation from the Senate Permanent Select Committee on Intelligence that the administration would expedite the process and release the opinion by mid May. “The administration’s response was to literally ignore it,” Goitein said.

The mechanics of Section 702 also undercut the administration’s November pressure campaign. When recertifying the program, the government submits a draft application 30 days before the final application, and FISC then receives another 30 days to decide.

Goitein noted that “the mere filing of an application automatically extends the existing certifications until the FISA court rules on that application.” To avoid an actual lapse, the government would need to file an application before March 17, 2027, making that roughly the deadline for congressional action.

Congress could also briefly extend existing certifications if additional time were needed. But the Brennan Center says a short term statutory extension without reforms could produce new certifications lasting a year, effectively delivering the clean reauthorization sought by surveillance hawks.

The program previously lapsed in June after warnings that telecommunications companies might stop following FISA court orders. A grandfathering provision required compliance through March 2027, however, and the predicted crisis never materialized.

At a Senate Judiciary Committee hearing, FBI Director Kash Patel claimed, “What the FBI does not do is collect on U.S. citizens.” Goitein offered the missing context: “As soon as the government gets the data, it goes rifling through it, looking for the communications of Americans.”

A 2023 Privacy and Civil Liberties Oversight Board report found relatively little national security value in warrantless backdoor searches involving U.S. persons. Members of Congress have also been subjected to those searches, making the push for another clean authorization especially glaring.

Donald Bell, policy counsel at the Project on Government Oversight, said the administration’s conduct showed why pressure for a clean reauthorization was failing on Capitol Hill. “Congress cannot give this or any future administration a blank check for warrantless surveillance,” Bell told the Prospect.

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