Aletho News

Another Trump Flip Flop: From ‘Kill FISA’ to ‘Clean Renewal’

By Alan Mosley | The Libertarian Institute | April 15, 2026

With its April 20 deadline for congressional renewal looming, Section 702 of the Foreign Intelligence Surveillance Act (FISA) is back in the spotlight. The provision, first adopted in 2008 as a part of the FISA Amendments Act as an update to the original 1978 Act, allows U.S. intelligence agencies to target “non-US persons located outside the United States to acquire foreign intelligence information” as a response to perceived technology gaps exposed in the years after 9/11. It achieves this by compelling American telecom companies to collect intelligence on foreign targets and turning over data to federal officials.

Many aspects of Section 702 are concerning to civil libertarians. The provision includes a “backdoor search” loophole that allows agencies like the Federal Bureau of Investigation to search the database for communications belonging to U.S. citizens without a warrant. On the topic of warrants, individual warrants for each target are not required by Section 702. Instead, the government gets annual approval via the Foreign Intelligence Surveillance Court (FISC) to conduct broad spying operations with little to no oversight, with no requirement that the government proves to the court that a specific target is even suspected of being an agent of a foreign power.

Recently, President Donald Trump asked Republicans to unify to extend the program with no changes in oversight or accountability. Trump posted on Truth Social, “When used properly, FISA is an effective tool to keep Americans safe. For these reasons, I have called for a clean 18-month extension.” The adjective “clean” is not politically neutral: it implies that attempts to reform the program are partisan clutter, and that re-evaluating the practical or constitutional application of such a tool is a waste of time.

But this isn’t the position shared by those who have been wrongly targeted by the intelligence community, including President Trump himself. In May 2020, Trump urged Republicans to vote “NO” on FISA, explicitly tying the law to fears of abuse, including against his own re-election campaign. Four years later, he told lawmakers to “KILL FISA,” claiming it had been “illegally used” against him and that officials had “spied on my campaign.” On Monday, Rep. Lauren Boebert (R-CO) wrote to National Security Agency Director Joshua Rudd to address “deeply troubling abuses of power” by NSA analysts, alleging the agency has used Section 702 to search the private communications of individuals ranging from dating apps to rental agreements. In his latest departure with the administration, Rep. Thomas Massie (R-KY) said, “I vote with GOP 91% of the time, but that’s about to go to 90%. I won’t vote to let feds spy on you without a warrant. FISA 702 allows the government to search for your information in vast databases compiled with targeting foreigners.”

That charge of “vast databases” of Americans’ private data is precisely the overreach that Edward Snowden blew the whistle on in 2013 when he revealed that the NSA was using its authority to collect telephone records in bulk. But the Fourth Amendment’s logic does not dissolve in the presence of large databases. According to the Supreme Court, a search that intrudes on a reasonable expectation of privacy requires a warrant supported by probate cause. In Carpenter v. United States, SCOTUS held that the government’s acquisition of historical cell-site location information was a Fourth Amendment search, emphasizing how modern technology can transform ordinary records into comprehensive tracking. Intelligence gathering at such a sheer scale, while politically attractive to those who crave power, is constitutionally dubious for all the ways it could be used to target individuals, even if the initial data collection is impersonal.

The secrecy and structure of the reviewing court compound the problem. Inspector General Michael E. Horowitz described FISA proceedings as “ex parte,” with only the government appearing, which deprives the process of “adversarial testing.” In ordinary constitutional practice, laws that burden speech, association, and privacy are tested by said adversarial litigation to force factual development, limiting principles, and public reasoning. This leaves the FISC’s decisions and operations shrouded in secrecy. Annual statistics help to explain why civil liberty advocates criticize the FISC as a compliance venue rather than a constitutional barrier. The Administrative Office of the U.S. Courts reports that in 2024 the FISC granted or modified the overwhelming majority of items before it, with no applications denied in full. In 2025, it only denied four applications in full while continuing to grant or modify most of the remainder. While these numbers do not necessarily prove bad faith by the judges involved, they do underscore the institutional asymmetry: a secret court hearing only one party (the state) is predisposed to side with it without due courtesy to the target of the government’s ire.

A surveillance state that cannot be meaningfully challenged in court is not merely powerful, it is structurally insulated. In another SCOTUS ruling, Clapper v. Amnesty International, the court ruled that the plaintiffs, including lawyers, journalists, and human-rights advocates, lacked the standing to challenge FISA Section 702 because they could not prove their alleged injuries. In other words, since potential government surveillance of their activities is done in secret, they can’t be sure that such surveillance took place, even if possible or even likely. The practical result is a legal regime in which the people most likely to become targets of the surveillance state are told, in effect, that they must wait until the government admits to its own wrongdoing, if it ever does. Such doctrine rewards opacity, discourages accountability, and converts constitutional limits into after-the-fact internal policy debates. A free society does not need to prove it is being watched before it can object to the creation of institutions engineered to snoop first and justify later.

Another perspective to judge such unconstitutional surveillance is the imposed cost, even when not aimed at a particular citizen. In Clapper, the plaintiffs described costly precautions taken to protect confidential communications, precautions the Court treated as self-inflicted for standing purposes. Yet those precautions are better understood as the rational price of uncertainty: when citizens cannot know whether their interactions with foreign sources, clients, colleagues, or family are subject to state capture, prudence demands self-censorship, detours, and silence. This burden falls especially hard on professions that depend on confidentiality, such as investigative journalists, advocacy groups, and legal counsel. The effect is fewer inquiries, fewer candid conversations, and fewer whistleblowers that might be identified by an algorithm or an analyst. As a result, the same surveillance state that should be met with a multitude of challenges from civil rights advocates chills its opposition into less resistance.

Americans should oppose Section 702 because it builds a durable exception to the Fourth Amendment. It vests immense surveillance discretion in the executive branch and invites political abuse, as the president knows from personal experience. It conscripts private companies as unwilling deputies to the intelligence community and treats the public like criminals-in-waiting. Predictably, citizens trim speech and associations when they suspect the state can catalog their correspondence. “If you have nothing to hide, you have nothing to fear” has never been an acceptable argument for the curtailment of privacy. A free people should not live by such a gross exception to liberty.

April 15, 2026 - Posted by aletho | Civil Liberties, Full Spectrum Dominance | Human rights, United States