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Congress is about to authorize a surveillance program no one can investigate

April 15, 2026

Section 702 of the Foreign Intelligence Surveillance Act (FISA) lapses April 20—just days from now. The Trump administration wants Congress to renew it, cleanly, without a warrant requirement for searches of Americans’ communications. Congress should refuse, and the reason has nothing to do with traditional debates about surveillance.

The reason is Assistant Attorney General T. Elliot Gaiser’s April 1 memo.

Earlier this month, the Justice Department’s Office of Legal Counsel declared the Presidential Records Act unconstitutional. The practical effect is that the records of White House decision-making—presidential communications, National Security Council deliberations, Office of Legal Counsel (OLC) legal memoranda generated at presidential direction—are now characterized as the president’s personal property, legally destroyable at his discretion according to Gaiser’s legal opinion.

When you combine that records-destruction authority with FISA’s existing Section 702 surveillance infrastructure, you get something that hasn’t existed before in American law: a politically directed domestic surveillance program whose White House-level direction can be legally made to disappear.

Section 702, enacted in 2008, allows warrantless surveillance of non-U.S. persons abroad by the National Security Agency (NSA). When Americans communicate with those targets, their communications are “incidentally” collected. Agencies can then search those communications using Americans’ names, email addresses, and phone numbers, all without obtaining a warrant from a federal judge. The FBI has used this backdoor to search the communications of Black Lives Matter protesters, federal and state legislators, a judge, and 19,000 donors to a single congressional campaign. The warrant requirement that would have closed this backdoor failed by a 212–212 tie in 2024.

Unmasking—revealing the identity of an American whose communications were captured under Section 702 surveillance—requires only that an authorized official certify it is “necessary to understand foreign intelligence information.” Senior White House officials, including National Security Advisors, routinely make unmasking requests. There is no warrant requirement, no judicial review of individual requests, and no statutory bar on presidential direction of unmasking for political purposes.

The oversight mechanisms that would detect abuse have been systematically removed. The Privacy and Civil Liberties Oversight Board—the independent watchdog created specifically to review classified surveillance programs—was gutted when Trump fired its three Democratic members in January 2025, eliminating its quorum. The FBI office established during the Biden administration to detect surveillance misuse was closed by Director Kash Patel last year. And the Justice Department’s Inspector General Office is now staffed with Trump loyalists who are unlikely to investigate surveillance-related wrongdoing.

So, where does the Gaiser opinion come in?

Even with those oversight mechanisms removed, a political surveillance program would ordinarily leave a document trail: the presidential directive authorizing it, the OLC memorandum providing its legal predicate, the NSC deliberations directing which targets to prioritize. Those records would eventually be available to Congress, the Privacy and Civil Liberties Oversight Board, or a future special counsel.

Not anymore. Under the Gaiser opinion, those are all presidential personal property. They can be destroyed. What survives in NSA’s operational records is only that queries were run under authorized procedures, not why those specific targets were selected, or who in the White House directed the program.

The three elements converge with precision. NSPM-7, signed September 25, 2025, designates individuals holding “anti-capitalist,” “anti-Christian,” or immigration-skeptical views as domestic terrorism threats. The newly funded NSPM-7 Joint Mission Center—ten agencies, $166 million, 328 positions in the FY2027 budget request—is tasked to “proactively identify” such Americans. Any of those targets’ foreign contacts constitutes a potential 702 collection opportunity. Queries run, communications collected, identities unmasked, content delivered to the White House NSC. White House direction of the program: destroyed under Gaiser.

A warrant requirement for U.S. person queries would mean that every search of 702 databases using an American’s name requires Foreign Intelligence Surveillance Court approval and a probable cause showing. That is not burdensome for legitimate foreign intelligence collection implicating a U.S. person’s constitutional rights. A warrant requirement is the one judicial chokepoint that makes the political surveillance architecture operationally difficult, perhaps infeasible.

If the administration will not accept those conditions, Congress should let 702 lapse. Surveillance under the pre-Section 702 legal structure would still be available for any foreign power targets, including temporary emergency warrantless surveillance authority. Any Section 702 targets under surveillance at the time Section 702 expired could still be collected against for a year.

A 702 expiration would give reformers the leverage they need. The price of reauthorization should be simple and non-negotiable: a warrant requirement for all U.S. person queries, full stop. No warrant requirement, no renewal.

Cato senior fellow Patrick Eddington is the author of The Triumph of Fear: Domestic Surveillance from McKinley through Eisenhower.

Orange County Register

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Congress is about to authorize a surveillance program no one can investigate

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