Bill Kristol & Ryan Goodman: How Trump Could Weaponize Surveillance

Summary

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Bulwark Takes – Bill Kristol & Ryan Goodman: How Trump Could Weaponize Surveillance

Podcast: Bulwark Takes
Episode Date: April 19, 2026
Host: Bill Kristol
Guest: Ryan Goodman (Professor of Law, NYU; Co-Editor of Just Security)

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Overview

In this episode, Bill Kristol and Ryan Goodman dive deep into the live and contentious debate unfolding on Capitol Hill over the reauthorization and possible reform of Section 702 of the Foreign Intelligence Surveillance Act (FISA). The conversation explores the technical and constitutional stakes of this surveillance authority, the risks posed by the current Trump administration, and the balance between national security and civil liberties. Goodman and Kristol discuss how Section 702 could be abused under the present administration, especially in targeting domestic opponents, and consider possible legislative safeguards such as warrant requirements.

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Key Discussion Points & Insights

What Is Section 702? (01:21–04:57)

• Goodman explains Section 702:
  • Established in 2008, Section 702 allows U.S. intelligence to collect communications of foreign nationals outside the U.S. to gather foreign intelligence.
  • The collection is broad and "goes into the backbone of the Internet," inevitably sweeping up Americans’ communications with foreign nationals or as collateral.
  • This raises major Fourth Amendment (privacy) and First Amendment (protest, speech) concerns since Americans’ content is accessed without a warrant.
• Host and guest highlight the tension:
  • Traditionally, for domestic surveillance, a judge and "probable cause" are needed, but Section 702 bypasses this for queried data.

Quote:
"The database has the contents of emails, texts and phone calls of Americans. And you would think...that the Fourth Amendment might apply to them too. So that's the big issue."
—Ryan Goodman (03:11)

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Track Record and Concerns: Abuse or Utility? (05:45–10:31)

• National security community views 702 as "vital" for intercepting threats (e.g., preventing assassinations, mass-casualty attacks).
• However, the evidence of its value for the FBI’s backdoor searches of Americans is murkier.
• Non-compliance or “abuse” instances have occurred but are largely system errors, not intentional; e.g., searches around January 6 or Black Lives Matter protests (08:24).
• Recent reforms have improved compliance, according to internal watchdogs (April 2024 DOJ IG report).

Quote:
"There is a federal court opinion that details the FBI...using the Section 702 database when they should not have...including going into the database to find information on January 6 rioters, Black Lives Matter protesters."
—Ryan Goodman (08:24)

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The Real-Time Legislative Debate (10:51–13:15)

• Section 702 faces sunset if not reauthorized by end of month.
• Core debate: Should the querying of Americans’ data require a warrant, with exceptions allowed for emergencies?
• Johnson’s "fake warrant" bill described as a ruse, addressing only foreign collection, not back-end searches involving Americans.

Quote:
"It was just a ruse is the way I described it at the time. And it did not do anything to resolve this core civil libertarian issue."
—Ryan Goodman (12:57)

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The Trump Administration and the Abuse Risk (14:16–26:55)

• Kristol frames the stakes: Is this moment different because of the current administration's record and intentions?
• Goodman is blunt about the risks: Trump’s administration has "decimated internal checks," targeting domestic opponents and conflating foreign and domestic terrorism.
• Evidence:
  • DOJ and DHS watchdogs have been sidelined.
  • The administration is labeling "Antifa" and other left-wing groups as foreign terror threats, allowing Section 702’s tools to be weaponized against them.
  • National Intelligence Priorities Framework now includes "Antifa"—a move widely criticized and seen as a prelude to surveillance.

Quote:
"All signs are pointing in that direction... this particular administration looks like it's ripe to abuse it... that's kind of opening up the turning the key that opens up Section 702."
—Ryan Goodman (18:09, 19:33)

Quote:
"If the administration is allowed to abuse Section 702 in such a grotesque way that looks back to... the 1960s and 70s... I think it compromises the whole program."
—Ryan Goodman (22:04)

• Kristol connects the dots: Even spurious foreign links can now tie back to domestic critics, endangering civil society and opposition groups during election cycles.

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The Future of Checks and Legislative Leverage (29:05–38:55)

• Goodman and Kristol canvass whether a modest warrant requirement (with exceptions for emergencies) could protect both security and rights.
• Goodman doubts the reauthorization will happen "cleanly" given bipartisan concern; the House and Senate are divided, but a Senate-led reform compromise is possible (especially via the Wyden-Lee proposal).
• Hypocrisy highlighted: Some in GOP leadership have previously advocated for similar reforms and now flip-flop, possibly for political reasons.

Quote:
"It is not such a big deal to impose a warrant. It is not a big deal in terms of a constraint in US national security interests."
—Ryan Goodman (31:05)

• Legislative mechanics: Even with contentious debate, a solid majority in Congress—across party lines—support Section 702’s reauthorization if civil liberties are protected.

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Big Picture and Institutional Reflections (38:55–41:38)

• Kristol observes that in a "normal" era, reauthorization would be thrashed out by relevant committees with intelligence officials, not via political brinkmanship. The Trump administration is closely coordinating with Speaker Johnson.
• Notably, current Director of National Intelligence Avril Haines is publicly absent, possibly reflecting her own reservations about a clean reauthorization.

Quote:
"It should give everybody pause that Kash Patel is a strong advocate of clean reauthorization... Why would he be so keen to have that authority?"
—Ryan Goodman (41:14)

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Closing Reflections on Democracy and Accountability (41:38–42:53)

• This rare public debate over secret surveillance authority is a sign of "a healthy part of democracy" and a moment of bipartisan cooperation amidst heightened concerns about abuse.

Quote:
"This is a healthy part of democracy and it really is a nice moment in which there's bipartisanship happening because I think people are really concerned about the immediate and long term threats."
—Ryan Goodman (42:36)

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Notable Quotes by Timestamp

• [03:11] “The database has the contents of emails, texts, and phone calls of Americans. And you would think… that the Fourth Amendment might apply to them too. So that's the big issue.” —Ryan Goodman
• [08:24] “There is a federal court opinion that details the FBI... using the Section 702 database when they should not have… including going into the database to find information on January 6 rioters, Black Lives Matter protesters.” —Ryan Goodman
• [12:57] “It was just a ruse is the way I described it at the time. And it did not do anything to resolve this core civil libertarian issue.” —Ryan Goodman
• [18:09, 19:33] “All signs are pointing in that direction... this particular administration looks like it's ripe to abuse it... that's kind of opening up the turning the key that opens up Section 702.” —Ryan Goodman
• [22:04] “If the administration is allowed to abuse Section 702 in such a grotesque way that looks back to... the 1960s and 70s... I think it compromises the whole program.” —Ryan Goodman
• [31:05] “It is not such a big deal to impose a warrant. It is not a big deal in terms of a constraint in US national security interests.” —Ryan Goodman
• [41:14] “It should give everybody pause that Kash Patel is a strong advocate of clean reauthorization... Why would he be so keen to have that authority?” —Ryan Goodman
• [42:36] “This is a healthy part of democracy and it really is a nice moment in which there's bipartisanship happening because I think people are really concerned about the immediate and long term threats.” —Ryan Goodman

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Timeline of Key Segments

| Timestamp | Segment Description | |----------------|---------------------------------------------------------------| | 01:21–04:57 | What is Section 702? Explanatory background | | 05:45–10:31 | Abuse vs. utility; compliance record; value for FBI searches | | 10:51–13:15 | The legislative debate; fake warrant bill; sunset clause | | 14:16–26:55 | Weaponization risk under Trump; Antifa as “foreign threat” | | 29:05–38:55 | Prospects for warrant reform; bipartisan dynamics | | 38:55–41:38 | Congressional process; role of DNI; motivations for clean reauth| | 41:38–42:53 | Democratic accountability and bipartisanship |

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Summary Takeaways

• Section 702 is a crucial national security tool that also brings significant privacy and civil liberties concerns, particularly for Americans swept up incidentally in surveillance.
• The current Trump administration has weakened internal checks, pursued dubious foreign threat designations for domestic groups, and is seen as poised to exploit Section 702 authorities for political ends.
• The legislative debate is not about whether to keep Section 702, but whether to bind it with appropriate constitutional safeguards (warrant requirements and exceptions), especially given the risk of abuse.
• Bipartisan support exists for reform, and a reasonable compromise (like the Wyden-Lee proposal) could protect both national security and Americans’ rights, but brinkmanship and mismanagement in the House threaten orderly resolution.
• The broader lesson is about the balance of power: Congress still has tools to limit executive overreach in surveillance, and public debate is both possible and healthy—if pursued in earnest by both parties.

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For more on Section 702 and ongoing legislative reform, see coverage at Just Security and The Bulwark. This episode is essential listening for anyone concerned about the intersection of surveillance, executive power, and democracy in 2026.

Transcript

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[Ryan Goodman]

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[Bill Kristol]

Hi, Bill Kristol here for Bulwark on Sunday. Very glad to be joined again by Ryan Goodman, professor of law at nyu, formerly at Harvard and editor, co editor, I guess, of Just Security, the indispensable website on national security and the law, which is what we're going to talk about today. So thanks for joining me, Ryan.

[Ryan Goodman]

I'm looking forward to the conversation. Thanks for having me on.

[Bill Kristol]

So I think one will begin at least, and I spend most of our time on this very interesting, I think debate which is happening on the Hill and which right now is a live debate on section 702 of not sure what section 702 of some piece of legislation, you shorthand these things. If someone like me who's not really an expert and then you just, you know, it's section 702, you're not quite sure what is a section 702. But with respect to the Foreign Intelligence Court and surveillance and it's been reauthorized in the past and now there's an effort to insist on some reforms. And maybe you should begin by given as you can tell that I'm not fully, fully cognizant of all the complexities here, to say the least. Why don't you begin by explaining briefly what, what is section 702 and what's, what's the debate about it. It, it on Thursday, the House crashed in a sense with unable to find a resolution on it. So it's a very live issue going forward for this next week and for the next more than a week Perhaps in both House and the senate. So section 702, what is it? What is it?

[Ryan Goodman]

Okay, great. So section 702 is a section of the Foreign Intelligence Surveillance act that Congress created in 2008 after it's a kind of a post 911 authorization for the US intelligence community to engage in an enormously powerful surveillance tool. And what it does is it's the authority is that the US Intelligence community can go into the backbone of the Internet and the like and collect the emails, texts and phone calls, the content of them of a foreign national who is outside the United States or in a foreign country if they are discussing and it's about foreign intelligence information. So foreign national, foreign country discussing foreign intelligence information, then they can just collect all of that information. And under the US Constitution for a long time it's just well understood those individuals abroad do not have constitutional rights and the fourth Amendment doesn't apply to them. The problem is that that huge database that is collected also soaks up a lot of Americans communications because there might be Americans communicating with the foreign national. The foreign national might be forwarding email correspondence that's between just two Americans, all sorts of things. So the datab has the contents of emails, texts and phone calls of Americans. And you would think we can talk about this in more detail, that the fourth Amendment might apply to them too. So that's the big issue. So civil libertarians, regardless of party, for example, are very concerned that the FBI has the authority and this is what they've been doing now for years, to go in the back door. The back door means that all this information being collected in the database and then the FBI can go in and query, that's the term that's given for it, the database of US person information. And there are some rules that apply to the FBI as to what they have to satisfy to go into the back door of the section702 database. But none of that is really regulated by the courts when they go on individual hunts for US Persons information. So American citizens and legal permanent residents in the United States and that's the biggest issue because the Freedom Caucus and Democrats on the Hill, not all of them, but the super majority are very concerned that that is a privacy interest of Americans. And that's also like a First Amendment interest as well in terms of protest activity, free speech, etc. That people might be targeted for that.

[Bill Kristol]

And they haven't over the last, I guess it's more than 15 years now, had to have a warrant to do those things. The FBI, which they would For a normal. If you and I were having a conversation and the FBI wanted to investigate what we had said to each other, they would need to go to a judge and.

[Ryan Goodman]

Right, exactly. So if the FBI wanted to access our communications, they would need to go to a judge and prove that there's probable cause to believe that X, Y or Z is happening in our communications. The reason I say X, Y or Z is if we're talking about in a criminal setting, they'd have to prove that our communications have evidence of a crime. And if we're talking about in a counterintelligence setting, they might have to prove probable cause that it's related to some intelligence threat, some national security threat.

[Bill Kristol]

So this is where. So this is the issue. And this has been going for, as you say, since 2008. And national security people whom I trust, I mean, I think it's been a very useful national security tool and there seems to be some consensus on that. But also, as you say, civil libertarians have been concerned. Well, a. That it's been useful be that it doesn't seem, we don't know, of course, to have been abused or to have been abused much. I mean, we don't have thousands of cases that have emerged of people being persecuted by stuff that was gathered, I don't think under 702 of Americans being sort of harassed by the federal government for that. So maybe that would give one some reassurance. But of course, then the third question is how much worth guard, how much more guarding do we need to have of the hen house here with the current administration and the current FBI? Right.

[Ryan Goodman]

Yeah. So there's a. I would. I agree with you on the idea that there's a consensus on the part of national security experts, people who have served in the government and are serving in the government that are deeply concerned about and focused on threats to US national security for them. And for me, I think of it as a vital tool, essential. Without it, the United States would be in a completely different posture vis a vis foreign threats. And that includes things like dealing with potential assassinations of foreign leaders, Al Qaeda, isis, doing mass casualty events and being able to intercept their communications to stop them and things like that. And I'm relying on public reporting to identify those kinds of instances in which it's proven successful. And the Biden administration, when the reauthorization came up again in 2024, had a very powerful letter submitted by several incumbent national security officials to Congress describing how vital all of that is. Now, I've been careful to describe how essential and vital it is for dealing with foreign threats. I don't know how vital it is for the FBI to access the back end, the back door and how important that has been. There is some reporting. There's a recent report April 2 from the Privacy and Civil Liberties Oversight Board. There's kind of like independent watchdog group inside the executive branch. And it's a staff report because the Trump administration has fired people, so they don't actually have members as a quorum. But the report also then starts to detail what are the, what's the value being of US person searches? It's a little bit. It's not as strong, let's put it that way. And there's also this big question of even if the information in that database has been important for the FBI to go in the back door, maybe they'd surely have gotten the same information if they had a warrant, just had to prove to a court that they needed to be there in the back door. So that's part of it. And then I on the non compliance, there is a version of non compliance that has been taking place, but it's, I think the way I look at it and others would disagree with me on this, but I look at it as it's non compliance. That's not about intentional abuse of the system. But there is a federal court opinion that details the FBI, for lack of a better word, really screwing up and using the section702 database when they should not have. And that includes going into the database to find information on January 6, rioters to find information on Black Lives Matter protests, protesters. And you can see that has no necessary political valence to it. But the problem with it is it was non compliance because their system was messed up. Their system actually had them just go into the database by default. Rather than that they had to justify going into the database. It was like an almost like a website interface problem. And it's a form of non compliance. And as some of the people who served in the government would say, look at that. We also at the FBI at the time reported our non compliance. So it shows part of the system working and then that has been brought into check. So if you look at their recent Privacy, Civil Liberties and Oversight Board report, if you look at the recent Department of Justice Inspector General report, they say based on FBI reforms and congressional reforms that were implemented in 2024, compliance is where it should be, according to them, that there's those issues have been resolved. Also. They resolve their website interface problem. Yeah, yeah.

[Bill Kristol]

So that's somewhat reassuring. I guess, anyway, so it's up for reauthorization. I think they set it up so it had to be reauthorized every two years, I think to kind of make sure this wasn't, you know, that people took a fresh look at it and so they're taking a fresh look. And I think pretty much everyone wants to reauthorize something, the foreign, you know, the core program, so to speak.

[Ryan Goodman]

Yeah.

[Bill Kristol]

But the debate is should there be stricter standards for when an American citizen gets swept up or an American or somebody in America, I guess not necessarily a citizen gets swept up in this, in this search and should there be a warrant of some kind and what exceptions could there be? So, yeah, talk a little bit about that. So what's the current actual debate?

[Ryan Goodman]

So that is the heart of it because it's such a powerful tool. That's why this particular national security legislation has always had this kind of sunset clause. So that it forces the question of is the equilibrium the correct equilibrium. And now we're at that cliff again. So if Congress does not act by the end of this month is the new extension of a couple week extension. If Congress does not affirmatively act, the entire Section 702 program goes away. There's a little bit of a grandfather clause element to it. Some of the current investigations and use of it can continue for a little bit after there's a bit of a tale, but that's it. And so that's unique in the sense that it really empowers some members of Congress to be able to insist on certain conditions because if their conditions aren't met, as we saw last week late into the night, Mike Johnson doesn't have the votes in the House without some of these conditions being applied. And those conditions are the heart of the concern is Americans privacy rights and First Amendment rights and some kind of a warrant requirement placed on that. And then I'll just say that if people weren't watching this closely, I was actually up throughout the night until about 2:30am when they held this midnight vote. And it was a shocker because Mike Johnson released this legislation, a bill that he wanted everybody to come back to the Hill and vote on. And the shocker was also that the legislation that he provided, I'll just boil it down to one thing. He kind of the legislation, the text of it describes a warrant. It's got nothing to do with everything we've just talked about nothing. It was about the front end of the collection. And the front end of collection is not about collecting on Americans. It targets foreigners, so there's no issue of a warrant there. It's all about the back end. And it was just a ruse is the way I described it at the time. And it did not do anything to resolve this core civil libertarian issue.

[Lingokids Parent]

I used to feel so guilty handing over the tablet just to get things done. We all do. But honestly, I switched to lingokids. The guilt is gone and the kids are obsessed. Really.

[Ryan Goodman]

Do they actually like it?

[Lingokids Parent]

Oh, oh, they love it. It's all games, music lessons and stories. They think they're just playing, but I know they're safe from weird ads and junk.

[Child]

Mom, look. I'm flying into space.

[Lingokids Parent]

See, they're happy, I'm happy.

[Ryan Goodman]

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[Bill Kristol]

So the Trump administration and Mike Johnson and the bulk of the Republican Party want the thing, want a quote, clean reauthorization, that is, no new stipulations or limitations or hurdles to jump through. And the objections are, as you said, the core one is some form a judicial, basically court signing off on what's happening. And then there's questions of whether there'd be exceptions and emergencies, which I think most people do think there would be. And I think that's consistent with other laws and those kinds. Right. You know, but anyway, so it's, that's the, that's the debate. What do you. So where does, where does it go? And what I feel, to me, I guess I'm struck that it's a very in the weeds thing. It hasn't gotten a huge amount of publicity, though. Thursday night was dramatic. So it got some as Republicans defeated, I guess, first the bill and then a rule to bring up another bill that would have been a version of a clean authorization. But it's an interesting question of how to balance two things, I think how to balance national security and obviously individual rights and checks on government exerting its national security powers, A and B. Is it right to have a slightly different view of this, given that the current administration is in power and it. Does that make sense to say no? You know, we might have been okay with this in the past. And they corrected their own abuses as you said earlier, to some degree or acknowledged them and then said they corrected them. But can't really trust this administration to do that. So we're going to adjust the legislation some am I so how does that what do you think of that and how does that play out?

[Ryan Goodman]

I think that the present administration acutely brings to the foreground issues of abuse the ways in which the section 702 could be used by an administration to really go after Americans private communications and target people on the basis of First Amendment protected activities. And that surely has to weigh heavily in the balance. And I think it weighs heavily in the balance in two ways. So I can describe what I there's a lot of data points on the public record as to what the direction is that the administration is going and how they will, I would say in all likelihood abuse the Section 702 program to go after what they identify as left wing groups. But their definition of left wing and the like is whacked. But I think there's all signs are pointing in that direction. So that's one. This particular administration looks like it's ripe to abuse it and to spell it out a little bit here. 1.

[Bill Kristol]

Yeah, do spell that out because I think some people might say, well you guys are kind of anti Trump and you might have said in January 21 that this is a fear. But I think we now have 15 months of experience with what this administration, how it understands what terrorism is, how it understands the links between domestic and foreign terrorism, what authorities it's claimed in other respects, the use of the FBI and the Justice Department. So you followed that so closely, just security and personally obviously walk us through a little bit. Why why one comes to this judgment in, you know, in April of 2026.

[Ryan Goodman]

Yeah. So I think as a background matter there are at least two variables that are important. One, that the administration has decimated internal checks within the administration, inspectors generals, the P Club, the privacy, civil liberties and overs and other internal watchdogs on Department of Homeland Security and the like. So you don't have those internal checks. And then the second is the government has definitely shown a penchant for violating Americans First Amendment rights and Fourth Amendment rights in related context. So the way in which the administration has gone after protesters and judges have pushed back on this. So it's not my interpretation. If you just look at what the federal judges have said, especially, especially in the cases in which the administration administration has accused protesters of forcibly interfering with immigration enforcement because that's the key can they tie it to acts of violence or force? And the courts have said this is not forcible interference with immigration enforcement and its First Amendment, sorry, First and Fourth Amendment rights that are being violated. You've got those two things, internal checks missing a penchant for violating first and Fourth amendment rights in their related domain. And now we have evidence coming from Reuters and the New York Times and others which is saying showing that the administration is on a campaign to paint, quote unquote antifa as a foreign intelligence threat. Secretary Rubio has a summit that they're trying to plan in the summer June of this year. A global summit. There have been four designations of supposedly antifa related groups as foreign terrorist organizations. There's a great piece of just security by Tom Joslin debunking that, showing that there are no such ties with three other four groups, et cetera. But what's that all about? It's about creating this notion of a left wing violent groups even though they define violence very broadly and TIFA as being this global threat, an international threat. The New York Times report also shows that the foreign countries are like baffled, baffled by this. Even the countries in which these supposed organizations are operating, according to the State Department, the countries are like this is not our issue. That's not an issue with this group. And what, what on earth is the US doing trying to maintain mount this campaign against so called left wing groups? Any expert in US national security surveillance law can tell you that that seems to be a road to use of section 702. Because if you can have antifa as a foreign intelligence threat, as a counter, as a counterterrorism matter, that's kind of opening up the turning the key that opens up section 702. The New York Times also reported. This is all a report, very deep report earlier this month that the US intelligence community has placed Antifa in the National Intelligence Priorities Framework, the nymph, the nif. That's huge. That is the governing framework for also prioritizing antifa as though that's one of our major national security threats to open section 702 and Antifa. It's a bogus. What they're articulating as the government is articulating as an antifa threat. It comes along with what we've discussed in this show you've discussed multiple times, Bill, which is the NSPM National Security Presidential Memorandum 7 which suggests that there's these anti fascist antifa groups that are a violent threat. But the actual NSPM7 starts to drop out the definition of violence. And it just says, oh, including if they have a conspiracy against rights which doesn't have a violent connection. The Attorney General Bondi at the time passed implement an implementing memorandum on NSPM7 to go after these groups. And in that she lists a whole bunch of crimes, mail fraud, tax fraud, et cetera, that have no connection to violence. And that's what we're looking at because I think that's to me the major concern that people should have and I think a lot of people do have when they understand what this is all about, which is this is all ripe for abuse. That is not the intent of section 702. And I would imagine super majority of members of Congress don't think that's the intent of section 702. So to me that's what makes it super acute that this is a different administration under very different circumstances and it's a reason that you need a check. And the other piece that I think is really important to try to get across to people who are concerned about the preserving section 702 in terms of the core of it for foreign intelligence threats. To me, if it is allowed for the Trump administration to go through the abuse of section 702 and we have a major scandal for them doing that, so they don't apply a check like a warrant, I think it compromises the whole program. I don't think Americans parcel of these details so finely. And if the administration is allowed to abuse section 702 in such a grotesque way that looks back to. It's like it has echoes of what happened in the 1960s and 70s in terms of abuse of surveillance authorities domestically, I think it compromises the whole program. The program has always been politically vulnerable. And if we have that kind of scandal, I'm very worried that American support for the core of section 702 drops out. So I think even for the national security minded, they should support some additional checks that prevent that kind of future scenario.

[Bill Kristol]

So let's talk about those checks in a second. But just to be clear. So yeah, there was the national security memorandum in September, I think it was. And that was very much alarmed a lot of people. I think correctly that suddenly. And the list of things that would tip you off that they were domestic terror organizations was if they were anti capitalist or anti Christian or all kinds of, you know, stuff like this. So that seems to lay the groundwork for going after people here domestically. But then the foreign thing, if I understand what you're saying correctly, sort of compounds the legitimate fear because we do have More the national security apparatus has much more authority to go after people to surveil and intercept communications abroad. And so and then if you could just tie that, even if it's very random, into some connection with someone back here, as you say, someone forwarding an email or forwarding a article, they like adjust security from, you know, foreigners sending it to an American or vice versa, suddenly you've got a nexus, so to speak. And I guess that's what's, am I right that that's kind of the one, two step there is what's really alarming

[Ryan Goodman]

exactly, that it is the necessary condition that they need to trigger these authorities. That's the step. And then exactly what you say, which is the dragnet of that enormous collection of emails etc can just ratchet up, especially if they expand the scope of section 702 to quote unquote, left wing groups abroad. And then they can just go fishing for us person emails, texts, phone call conversations, the content of the conversation based on this idea that there's this global and domestic tie in with these groups

[Bill Kristol]

and that has all kinds of implications going forward, both in terms of harassing people here in the US and investigating them, I suppose, even if they also, we don't go to court to convict them, also sort of make charges they could make about election, you know, related to elections in 2026 and 2028, I suppose. And it opens up a lot of possibilities for misbehavior by administration if it's seeking to discredit, delegitimize or just weaken and hamper and shackle, as it were, domestic critics.

[Ryan Goodman]

Absolutely. And I, I mean, who knows who can be put on their enemies list. So the way that former FBI Director Hoover abused domestic surveillance authorities was to also go after people that he was concerned might not be loyal to the president at the time. And if that's the kind of authority we're just giving over to presidents, and this president in particular, I think that's the concern that one might have. It's, it's no holds barred at that point who they might want to just look into the communications of and that power, especially if they, the Congress puts on a new sunset that's many years from now is in the hands of whomever. But right now we know it to be in the hands of Cash Patel, period, point blank, and Donald Trump. And that's the issue. And I think that if they wanted to try to connect it up with like Taylor Greene because she has said things that are sympathetic to the extremist views that are outlined in NSPM 7, that would be the query that they could go into the database for. And I don't think that it necessarily has to tie up into, well, then will the FBI try to criminally prosecute her? It's just no. Should the FBI be looking at her emails, phone calls and texts without probable cause or judicial warrant? It's just that simple, I think, in terms of how awesome the power is and how threatening it is to us Constitutional rights.

[Bill Kristol]

Yeah. And Hoover didn't prosecute people necessarily, but he leaked material or had people or threatened people, obviously, and so forth. On that. I'm. The Justice Department, which the FBI is part of, has been despite, or maybe because despite Bonty's departure, or maybe apparently despite his departure under Blanche, seems to be not moving ahead and almost accelerating, maybe even the willingness to use the agencies of government, of law enforcement to go after political critics and enemies. So I think, again, I think that if one thought, well, gee, maybe Bonty's gone and Kristi Noem's gone and back to a more normal, so to speak, Justice Department and national security apparatus, or law enforcement apparatus even, that's not clear. That's the case, right?

[Ryan Goodman]

Oh, not clear it's the case at all. Like you say, it's either, you know, straight same line or same trajectory or it's accelerating. Just one piece of evidence of it is just in the recent days, I think last 48 hours, there's evidence that they're ratcheting up what I think of as the omnibus conspiracy against John Brennan and others. The reason it's the omnibus conspiracy is that's the investigation that's happening in South Florida. And immediately, for some people who are thinking about this, you should think, well, what on earth does John Brennan, the former head of the CIA, have to do with Florida? If there was any investigation, I think it'd be in D.C. or something. And it's because of the omnibus idea that, oh, everything's connected. All of the efforts to prevent Trump from becoming president or serving out his term, it's all connected. There's this omnibus conspiracy and it's all connected also to Jack Smith and in Florida, the classified documents investigation. So they're ratcheting that up to the point that a senior prosecutor in that office resigned because that sounds like they're trying to indict people on that seems like a crazy theory. I can't even imagine what it will look like on paper. But that's, that's Todd Blanche. He has total responsibility for that. There's no. There doesn't seem to be any daylight between what was occurring before he became the acting attorney general and now.

[Bill Kristol]

So it seems like it doesn't seem that hard to attach the kind of warrant, a reasonable version of a warrant requirement that wouldn't slow everything down if there were an urgent need to access an American's communications and so forth. What do you think happens? Is the administration going to insist on the clean reauthorization? And if they do, I hadn't realized the program, I thought there was some, some way which the program was sort of extended for another year, even though it's not really, even if it doesn't get, even if nothing happens, it doesn't actually die in two weeks. Or is that not quite right?

[Ryan Goodman]

Yeah, that's right. There is an argument for that. There's not as time sensitive a deadline as the end of the month because there is if anything has been certified, therefore allowed or authorized by the Foreign Intelligence Surveillance Court, then that should be able to last the certification for a year. That's the idea as to why there's this grandfather clause, this tale at the end. There's, it's a little murky. If I were to think about the legal risks from a government perspective, I'd be a little worried about that. And also in terms of the private companies that are providing the information to the government about what's on the Internet, backbone, etc. Will they go along with that in the same way? Because they're not as protected legally and the like. But, but there's something there. I do think that the, I don't know if the administration will insist if they see the writing on the wall, that there really is a strong bipartisan view, that is a majority view, that there should be some constraint like a warrant. And I do wonder about people like Jim Jordan. So Jim Jordan, who's run points on this in many ways, used to be somebody who definitely supported a warrant in 2024, et cetera, and he's flipped. And I do wonder about somebody like that because I would imagine that in his back of his, in the back of Jim Jordan's mind, it is not such a big deal to impose a warrant. It is not a big deal in terms of a constraint in US national security interests. So how hard or soft the view is in support of a clean reauthorization on the Hill, I'm not so sure. President Trump is easily identified as being hypocritical because he's fluctuated over time, over the years of saying like kill 702 writ large or conflating it with the Carter Page FISA warrant, which is different part of fisa. So I don't know where the administration will end up on that. And there's also the Senate side, and on the Senate side as well, there's good bipartisan support for these reforms. Senator Mike Lee has been on this one. He's being consistent. I think, unfortunately, the man has not been consistent on war powers. He's kind of dropped off the face of the earth on that under the Trump 2.0 administration. He was good in Trump 1.0, but here he's a strong bipartisan sponsor of the Wyden Lee legislation, which would do, as you just described, impose a warrant requirement, but with exceptions, including in an emergency. Also not imposing a warrant requirement when they want to go in the back end of the database and just look for metadata. So, like to's and froms. Who was that? Email to and from, but not the content. So it's very reasonable, bipartisan legislation by people who are also supporters of the administration. So I think that this is really dynamic. It's one of the, you know, last areas where there's real bipartisanship on the idea of congressional reform. And I think it's very difficult to guess where this will actually end up.

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[Bill Kristol]

It would be, I think, an indication if they could insist on this and if the administration gave in. The administration doesn't give in and is willing to play real chicken on this and perhaps have the program lapse or sort of lapse, as you said, with only limited authorities going forward and more, less reliable ones for the companies that cooperate to, to depend on and so forth. If the administration wants to play hardball, we'll show that they care an awful lot about maybe more about getting access to this data for other reasons than about pure national security if they succeed. On the other hand, if the bipartisan effort succeeds to impose more constraints, it's not a. For me, it would be important also from a broader political point of view. I don't mean political in a partisan way, but from a policy point of view that yes, you know, it makes sense to. There are ways to constrain certain things. Now, we don't know. It's not that we don't know for sure that they would obey these constraints. So let's just back at that for a minute. But I mean, there are ways to try to constrain this administration that Congress, which Congress has not done much of, to say the least over the first 15 months. But maybe there are other areas where you could do similar things. It's not as if Congress has no authority over a whole bunch of law enforcement and investigative and prosecutorial and DHS type things, right?

[Ryan Goodman]

Yeah.

[Bill Kristol]

And it's been very hesitant to use those. But I don't know, that would be. That's why for me, this is kind of an interesting moment. I don't know. But I guess we'll see what happens. What's your sense of the timetable on this, just to be clear? So the House passed an extension to the end of the month, which I guess the Senate hasn't. Actually everyone assumes the Senate will okay tomorrow, I think. Right.

[Ryan Goodman]

Yeah, they've okayed it, essentially.

[Bill Kristol]

Oh, they really? Okay.

[Ryan Goodman]

Yeah.

[Bill Kristol]

So then. So we have a pretty interesting 10 days of negotiations coming up, I guess, and discussions.

[Ryan Goodman]

Absolutely. And the ball might change over to being on the Senate side. There's some indications that Senator Thune is going to try to run with it and try to form legislation on the Senate side because Mike Johnson has proven himself to be incapable on the House side or it's just a royal mess on the House side. There's also some indications this is not publicly reported, but for. People have been telling me that Mike Johnson might actually want to stay with that fake warrant bill, which is I think would demonstrate to Senator Thune that it's a, you know, train crash coming once again on the House side if that's the case, because that is a deplorable it's just a ridiculous bill that's not going to win people over. And I think, I don't think anybody's confused by what the actual game is there. So I think the Senate might take responsibility for and there they need to move fast if they're going to do that because 10 days is not a great amount of time to get that legislation up and running.

[Bill Kristol]

And then just to be clear, the House presumably would pass such a bill because even though all Democrats almost, except for, I guess four are voting against the clean reauthorization, many, many of them in the past have voted, are clearly for reauthorizing the program. The great majority, I would say. So you could get a pretty big vote ultimately, one of these ironies where they can't get it through right now. But if they got presented with a, you know, a widened Lee type bill, they could get 300 votes for it, I suppose, in the House.

[Ryan Goodman]

I completely agree. I mean, that's the other way I think about it. If you just like take the 10,000 foot perspective on it, Mike Johnson has a majority that will vote in favor of a reauthorization with some reforms like a warrant requirement. He has that, that's in the House. It can happen. So if there's some slight change in that direction, this all gets done. And for all of the folks, which I also agree, super majority of the on the Hill, Republicans and Democrats think that section 702 is a vital national security tool. It gets preserved in its core and you would think that's in the offing. And so I do think that that to me is probably the most likely outcome at this point. But it's difficult to say, really difficult to say as to whether or not they're going to jeopardize the whole program or not, given actually this extraordinary, it seems like mismanagement by Speaker Johnson. So there's that part of it. And it was a bit of a surprise that there are these four Democrats who did not vote for sorry, who voted in favor of the fake warrant bill in the middle of the night. And that that to me was a little confusing. But it does mean that gives a little bit more room to Mike Johnson if he can use it, if he tried to get through a clean reauthorization. But maybe that will change because I think that came as a surprise to others. And maybe those poor Democrats might be convinced that they made the wrong call in the middle of the night.

[Bill Kristol]

And one. And it is. So I'll let you go, but close up here. But it is striking that in a normal situation, I would just say you would have, of course, the chairs of the relevant committees, and those are pretty serious committees with pretty some bipartisanship in their history, intelligence committees as well as the main foreign policy committees, talking to people from the administration, presumably with DNI or CIA director or, you know, relevant people who know a lot about this National Security Council types and trying to work out what could be worked out. I don't know. Johnson may just have decided he was going to try to do it, But Johnson may have also talked that the Trump administration may have wanted to try to force it through this way. That is, I think everyone's talking about Johnson, but how often did Johnson do things without consulting with Trump, you know, or someone very senior in Trump world? Not, not that often, I think. So it's an interesting question whether you can get a sort of, quote, normal resolution of this through normal discussions between the administration and Congress and within Congress or not. I guess, yes.

[Ryan Goodman]

And I agree. I think there must be very close coordination between the White House and Johnson. And there is one thing in what you said that is also worth bringing out. In 2024, when reauthorization came up that time because of the sunset clause imposed Inside the section 702 authorization or legislation, the Director of National Intelligence was one of the main actors out there coordinating, communicating with Congress. And that was Avril Haynes at the time explaining the what parts of section 702 are vital, et cetera, et cetera. Right now, there's a total absence on the part of the Director of National Intelligence, or I think it's a total absence. She's not really running point for the administration. And I think it's worthwhile noting that Politico has just recently reported that she informed Trump that she had reservations about clean reauthorization without reform and that Politico pointed out that they had earlier reported in her written responses to the Senate during her confirmation process, she had supported a warrant. And that makes sense. Tulsi Gabbard has in fact, been on that side like a Freedom Caucus person associated with Thomas Massie as well, in terms of concerns about privacy interests with these kinds of domestic surveillance powers. And she's not, I would imagine she's not in favor of a clean reauthorization. She understands the abuse that could take place. And I think it should give everybody pause that Kash Patel is a strong advocate of clean reauthorization. Cash Patel, who has otherwise been against some of these powers in the past, why would he be so keen to have that authority?

[Bill Kristol]

Well, that's a good question to end on and somewhat rhetorical question, but a real question in the sense that it really matters in terms of the legislation. So this has been terrific. Ryan, thank you for explaining this. Complicated, but maybe not quite so complicated as it appears at first debate and issue and which will. And we'll follow it together over the next 10 days and then maybe beyond, obviously. And then of course, there's the whole question of compliance and so forth. But right now, the public, we're getting a rare, in a sense, public debate about these matters and not depending on, you know, leaks from the administration or discovering people being indictments, you know, being handed down or not being handed down or grand jury is refusing to hand them down. You know, the kind of ways we learn about what this administration's up to are mostly not through anything open or transparent, whereas the big advantage of having an actual legislative process is, at least in theory, it can be educational, right?

[Ryan Goodman]

Absolutely. I think it kind of shows us, as you're just saying, this is a healthy part of democracy and it really is a nice moment in which there's bipartisanship happening because I think people are really concerned about the immediate and long term threats.

[Bill Kristol]

Ryan, thank you so much for taking the time today and we'll follow this over the next 10 days and beyond.

[Ryan Goodman]

Great to talk to you.

[Bill Kristol]

Thanks so much and thank you all for joining us on Bulwark on Sunday.

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