Patrick G. Eddington
On March 18, 2026, DC District Chief Judge James Boasberg ordered the Justice Department to turn over to the Cato Institute Foreign Intelligence Surveillance Act (FISA) Section 702 noncompliance records pursuant to a long-running Cato Freedom of Information Act (FOIA) lawsuit. The FBI had until April 10, 2026, to process 28 pages of records relating to FBI noncompliance incidents under FISA Section 702, in this case, and rather critically involving correspondence between the FBI and Congress.
Judge Boasberg’s language was pointed—he specifically noted that “several further weeks to process 28 pages is sufficient.” The message was clear: no more delays.
The FBI missed the deadline anyway.
On April 9—the day before the court-ordered deadline—DOJ’s opposing counsel gave an explicit assurance to Cato’s attorneys at Loevy & Loevy: the first tranche of records would be sent via FedEx overnight, going out the afternoon of April 10, which itself was problematic because it meant that the records would be delivered after Boasberg’s April 10 deadline.
That representation was made by an officer of the court to opposing counsel in active litigation. It wasn’t a maybe. It was a decision not to deliver the records to Cato by the close of business on April 10. And why the Bureau chose to use taxpayer dollars to overnight material that could easily have been emailed is another indicator of the lack of seriousness with which the FBI treated Boasberg’s order.
No package arrived at the offices of Loevy & Loevy of Chicago, Cato’s counsel of record in this (and all) of Cato’s FOIA cases.
Only through the dogged persistence of Loevy & Loevy FOIA litigator Merrick Wayne did the Justice Department finally email a paltry 14 heavily redacted pages of material late on the afternoon of April 13. Another 14 pages were withheld in full on the basis of alleged “national security” or “intelligence sources and methods” grounds.
What’s more, the FBI clearly completed its review of this material by March 23—just five days after Boasberg issued his order. Rather than release the material before the end of March—as it easily could have—the Bureau sat on the material for over two more weeks (see screenshot below):
This episode is a literal replay of the FBI’s stonewalling of a prior Cato FOIA lawsuit when FISA Section 702 was set to expire almost exactly two years ago during the Biden administration.
Even redacted, some of the records show continuing negligence with 702 database searches by FBI personnel, as the screenshot below indicates:
Also missing from the litigation production was any correspondence from individual House or Senate members who’ve raised questions about Section 702 violations, especially Senator Ron Wyden (D‑OR), who late yesterday released a bombshell letter to his colleagues pointing them to a classified letter about 702 abuses he urged them to read before any vote to reauthorize the program.
This matters enormously right now because Congress is scheduled to vote on reauthorizing FISA Section 702 on Wednesday, April 15.
Let that sink in.
At the precise moment Congress is being asked to continue one of the most sweeping and legally contested surveillance authorities in US history—a program that the FBI has repeatedly misused to conduct warrantless queries of Americans’ communications—the FBI is actively slow-rolling production of its Section 702 noncompliance records. The records Congress would most want to see before voting. The records the American public deserves to see before its representatives decide whether to extend this authority to allow the National Security Agency to continue intelligence collection operations that are guaranteed to sweep up vast volumes of information on citizens and taxpayers guilty of no crime.
At a minimum, House members who care about oversight—on both sides of the aisle—should be asking today why the DOJ and the Bureau are dragging their heels on releasing material dealing with FBI Section 702 noncompliance incidents. They should also be asking their colleagues on the House Intelligence Committee for copies of any FBI noncompliance notifications, so they have as complete a picture as possible of the scale of FBI Section 702 noncompliance before any vote to reauthorize the scandal-ridden surveillance power.
And the records Cato seeks in this current litigation go well beyond FBI correspondence with Congress, including the following:
FBI communications with other Justice Department components.
FBI correspondence with the FISA Court and the FISA Court of Review (FISCR).
Records dealing with the December 2, 2024, Memorandum and Order by Eastern District of New York Judge LaShann DeArcy Hall in the matter of US v. Agron Hasbajrami, 11-CR-623 (LDH) in which Judge Hall found that Section 702 database queries on US Persons constitute a Fourth Amendment search requiring a warrant to execute.
The significance of these withheld records cannot be overstated, given the current political climate surrounding reauthorization.
During his Senate confirmation hearing last year to be FBI director, Kash Patel testified publicly against any warrant requirement for Section 702 database queries involving US persons. The current administration is pushing for a clean reauthorization—no reforms, no warrant requirement, no meaningful new constraints on how the FBI can query the communications of Americans who have never been charged with any crime. They have every institutional incentive to ensure that records documenting the FBI’s own Section 702 misconduct remain buried until after the vote.
The vote is currently scheduled for Wednesday, April 15. The FBI’s misconduct speaks for itself.