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The Lawfare Podcast
Lawfare Daily: Matt Olsen Talks Iran, the Justice Department, and FISA 702
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- [00:01]
Benjamin Wittes
The Electronic Communications Privacy act turns 40 this year and it's showing its age. On Friday, March 6, Lawfare and Georgetown Law are bringing together leading scholars, practitioners and former government officials for installing updates to ecpa, a half day event on what's broken with the statute and how to fix it. The event is free and open to the public in person and online. Visit lawfaremedia.org ecpaevent that's lawfairmedia.org ecpaevent for details and to register.
- [00:36]
Matt Olson
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- [01:27]
Matt Olson
Not only are they focused on other things, not terrorism to the same degree as they focus on immigration or election interference, but more, more to the point, they've lost, forced out, fired the most capable, the most experienced FBI agents, FBI officials and DOJ prosecutors that were working on the Iran threat.
- [01:50]
Benjamin Wittes
It's the Lawfare podcast. I'm Benjamin Wittes, editor in chief of lawfare, and with Matt Olson, former Assistant Attorney General for National Security and a partner at WilmerHale.
- [02:04]
Matt Olson
It's indispensable to our ability to understand the Iran threat. Al Qaeda, China, Russia, increasingly narco traffickers. So it's a really extraordinarily valuable authority. It's unimaginable that Congress and the executive branch would let it collapse, given how important it is. But here we are, approaching the sunset.
- [02:27]
Benjamin Wittes
We're talking Iran today, terrorist attacks inside the United States, the dismantlement of American capability to repel them, and the pending lapse of FISA 702, the tool most obviously usable to prevent them. So, Matt, I asked you on to talk about FISA 702 reauthorization, which is coming up in a month or so. But before we get to that, we should talk a little bit about the war in Iran and its likely implications for domestic malevolent events by Iranian Forces, the National Security Division under your leadership and before had a long string of cases involving Iranian forces trying to do everything from assassinate people to blow things up. Talk a little bit about this history.
- [03:33]
Matt Olson
Yeah, and I do look forward to talking about section 702 as you know, something that I've worked on for close to 20 years, including a couple different conversations with you over the years about it. But I think it's important, as you point out, to talk about the threat from Iran inside the United States. Obviously, we are now in a conflict and a war in Iran. But again, as you said, when I was at the Justice Department, we worked closely with the FBI to understand and tackle disruption, the threat inside the United States from Iran and its intelligence services. Look, I mean, taking a broader view, I'm concerned as I sit here today talking to you that there's every reason to believe that Iran is looking to carry out a terrorist attack inside the United States. We know that this has been part of their project going back many years. They've had a long standing commitment, as you know, Ben, to target US Government officials more recently in retaliation for the death of Qase Soleimani last summer. In 2025, the Department of Homeland Security along with the FBI put out an alert about the Iranian homeland threat after the so called twelfth Day War, the bombings in Iran, saying that there was going to be, there was a heightened threat period and law enforcement inside the United States should be on high alert for the possibility of an Iranian terrorist attack inside the United States. I would even go back to my own time at doj and I remember sitting with the Attorney General when we brought one of these cases and he talked about Iran being one of the foremost, the foremost sponsor of state terrorism and that at the time talking about Iran's lethal plotting program inside the United States, which included a plot to kill then candidate, now President Donald Trump. So this is a long standing commitment from Iran to carry out an assassination inside the United States, whether against a political leader or a dissident, a critic of the Iranian regime. And it was a significant threat when I was in government. And I think there's every reason to believe that that threat has only increased with the current concept.
- [06:11]
Benjamin Wittes
And what is the magnitude of the, like, how many different plots did you guys end up prosecuting? I know there was the one against candidate Trump. There was also one against Ambassador Bolton, I believe, also in retaliation for the Qasem Soleimani attack. But there were others as well. It seemed like every few weeks you would get an NSD press release about Somebody being indicted for working with Iran on a blank attempt to do X, Y or Z. What was the universe of these cases like?
- [06:57]
Matt Olson
So I think your, your impression is the same as mine in terms of the pace of the Iranian activity in the United States and you know, on our side, the FBI DOJ's efforts to identify and disrupt these plots. I just went back in preparation for talking to you and looked at some of the press releases from like 2021 to 2024 when I left, and there were four significant cases that we identified that we charged during that time period. One of the through lines of these cases is the Iranian use of proxies inside the United States or effort to use criminal elements to carry out these attacks. So in one of the cases going back to 2020 was when we charged the case, it involved the indictment of three individuals, one Iranian, two Canadians, one of whom was alleged to have been a member of the Hells Angels for seeking to carry out a murder for hire plot targeting individuals in Maryland, one of whom was a dissident against the Iranian regime. There was another case involving the effort to target again a murder for hire plot targeting a dissident of an American citizen in New York City. That went pretty far along the path of being able to carry that out. There was the case involving the former National Security advisor in retaliation for the death of cost of Soleimani. That case involved the charge charged against the Iranian individual member of the Islamic Revolutionary Var Corps, irgc. And then, you know, the most recent case, because it was just four days ago that a jury returned a verdict of guilty against Asif Merchant. Merchant was trained by the irgc, sent here to carry out assassinations in the United States, including against political leaders, including again then candidate Donald Trump. That case was disrupted. He was charged and ultimately went to trial and was found guilty just this past Friday. So it was a steady flow of these cases. Now, I've mentioned four that we had press releases about. I will cite a counterterrorism expert, Matthew Levitt, who described 17 plots in the past five years involving Iranian actors inside the United States or Iranian directed plots inside the United States. So 17 in the past five years, according to Matt Levitt. Again, it's just a, I would say the threat from Iran was as high as any other terrorist activity we saw inside the United States. The fact that we may have not heard about so many cases in the past year or two, I don't think anyone should think that means that there isn't that same level of activity coming now.
- [09:39]
Benjamin Wittes
Right. So one Reason that these plots didn't make a huge amount of noise is that the FBI and you guys were quite effective in stopping them. And a lot of them were at relatively early stages of development. You had relatively early interdiction. And dogs that don't bark or bombs that don't go off, or assassinations that are, you know, failed murder for hire plots that don't result in murder are not the biggest news stories in the world. Right. I don't personally have a great deal of confidence that the FBI right now is single mindedly focused on this the way one would hope given the fact that eight days ago, nine days ago, we started bombing Tehran, killed the Supreme Leader, killed a lot of leadership there. How confident are you that the people who should be working on this full time are still employed at the Bureau or the National Security Division are still working the right cases? How should we understand the interactions between this presumably rising threat level and the current posture of the Justice Department?
- [11:13]
Matt Olson
Yeah, I mean, I think that's exactly the right question. I think I agree with you. As I've sort of described a rising threat, threat level, whether it's today, tomorrow, next week, next month, next six months or a year from now. We know what Iran plotted and how they viewed the death of the IRGC commander Qasem Soleimani several years ago. We can only assume a much greater degree of interest in retaliation for the death of the Supreme Leader, Haman Khomeini. So heightened threat environment.
- [11:47]
Benjamin Wittes
Khamenei.
- [11:47]
Matt Olson
Actually, yeah, Khamenei. Right, exactly. So no question about it, heightened threat environment. Now, with regard to sort of the capabilities of the Justice Department and including the FBI to disrupt this threat, I think one thing is, one point to start with is these are investigations that are really complex. They aren't, you know, go out and find somebody on the street and lock them up. These are long running investigations. They involve some of the most sophisticated and complicated investigative tools that are available. Like the use of FISA to conduct electronic surveillance, the use of well placed sources that may take years to develop by the FBI, the ability to have the judgment to allow an investigation to proceed, often covertly, where the investigation is covert in order to understand the full scope of the threat, see who all is involved and understand not just their relationships to others in the United States, but their relationships to those who are directing them back in Iran. So the cases are really complicated and require experience and judgment to run those investigations effectively. So with that as the backdrop. Look, I. It's hard to overstate how concerned I am about the loss of expertise, experience and capability at both the FBI and the Department of Justice among the prosecutors. We can talk a little bit more in depth about the specifics there, but I will say it's just not an exaggeration to say that they are not as capable as they were a year and a half ago. And not only are they focused on other things, not terrorism to the same degree as they focus on immigration or election interference, but more, more to the point, they've lost, forced out, fired the most capable, the most experienced FBI agents, FBI officials, and DOJ prosecutors that were working on the Iran threat.
- [13:51]
Benjamin Wittes
All right, well, let's talk about the Justice Department side first, because you're a little bit more intimate with that. Your old division. I have heard phrases like sold for parts, dismantled, a remnant of itself. How would you describe in general terms, not specifically with respect to Iran capability, the current state of the National Security Division?
- [14:21]
Matt Olson
Yeah, I mean, I think all of those terms that you used are generally on point. I think those are accurate. The National Security Division is not what it was. It's been decimated, effectively dismantled from the top down. So the front office leadership that worked on counterterrorism and counterexpionage was forced out early on in the Trump administration. In the front office alone, probably 100 years of experience working in the National Security Division and working national security investigations was forced out.
- [14:53]
Benjamin Wittes
And so when we say forced out, do we mean fired? Do we mean life was sufficiently unpleasant that they retired? What. What do we mean forced out? When we're talking about the NSD front office leadership, remember, like, these are career
- [15:10]
Matt Olson
officials, so there are supposedly protections for those career officials, but they were. The reason I use the word forced out is some of them were sent to do work that had nothing to do with national security, effectively sidelined or marginalized within the Justice Department and were made to be sort of irrelevant to the mission that they had worked on in jobs that were made up. Jobs. Nonsense jobs. There are others at more on the line levels that were unlawfully fired and just dismissed, given an hour to clean out their desks. And that happened up and down the ranks within the National Security Division. But I use forced out as a general term to describe the various ways in which these individuals were either fired or essentially pushed out their roles.
- [16:00]
Benjamin Wittes
I don't want to name names because these are career officials, but it's fair to say you take somebody who has very specialized expertise, say in Iranian counterterrorism, and you assign them to, you know, an immigration task force that's going to do no work, that sort of thing.
- [16:22]
Matt Olson
Precisely. And that's what happened day one during of the administration with several people. So they were just taken off the off of their job and not replaced. And by and large, Ben, they are irreplaceable individuals. I mean, there are people coming up the ranks. There are people who want to do these jobs. There are good people still within the National Security division. But the people doing the carrying out these responsibilities at the very top had been working these cases and this threat and working counterterrorism for 20, 25, 30 years in some cases.
- [16:59]
Benjamin Wittes
How many of these people are we talking about? Is this three people? Is it 30 people? Is it 100 people?
- [17:06]
Matt Olson
Yeah, it sort of depends on the echelon. At the very top, we're talking about a small handful of people again, but they are the cream of the cream, cream of the crop and the best that that we have. But underneath that, then the line supervisors also effectively forced out. And then by some reports, up to half of the line attorneys, the frontline attorneys who work these cases day in, day out, about half of those within the counterterrorism section are gone. And we're talking in that, you know, in the, in the couple of dozen people at the line level forced out or fired again for no particular reason. Right.
- [17:43]
Benjamin Wittes
How many people are we talking about who are focused on the Iranian target? You know, my sense of most national security prosecutors is that they sort of bounce between subjects, but they're, you know, you develop a kind of expertise in Iranian missiles. And to cite an example of one of our public service fellows, Troy Edwards, who was, you know, prosecuting a case involving, you know, Iranian missiles. And how many people are we talking about with specialized Iran expertise?
- [18:26]
Matt Olson
You know, it's, it's a, you're right in your observation that within the prosecutorial ranks, the counterterrorism prosecutors tend to work counterterrorism cases regardless of whether if it's an Al Qaeda threat or an Iran threat. The expertise is in investigative techniques, authorities and prosecuting those cases, working with U.S. attorney's offices. Whether it's an Iran threat or a non Iranian terrorism, international terrorism threat, it is the case that there will be repeat players. Because you do understand, you do learn as a prosecutor a little bit more as you work one of these cases about Iranian tradecraft, how to, you know, how to understand the nature of the threat, because you've worked a couple of those cases and how to recognize the signs of somebody who's a, you know, proxy here working for the Iranians. But honestly, that that when you're really talking about Iran, deep Iran expertise, then you're talking about the FBI and the investigators more than the prosecutors.
- [19:25]
Benjamin Wittes
All right, so let's talk about the FBI. There have been stories about how some of the people who were fired for having worked the Mar A Lago case to which they were assigned were fired from circumstances in which they were working Iran issues. First of all, do we know that to be true? And secondly, what do we know more generally about the damage to Iran capability at the Bureau?
- [19:59]
Matt Olson
Yeah, I mean, it's a similar story to the one I just described in terms of the dismantling of the National Security Division front office. The very first days of the administration, the very top echelon of the FBI and its key counterterrorism and national security leadership were effectively forced out. So you lost there in the same sort of parallel way as at the Justice Department and now Security Division. You lost decades, decades and decades of counterterrorism experience going down to 9, 11. The most striking, though development was just the fact that just days before we initiated the military action against Iran, some of the leading Iran investigators, line FBI agents, were fired from the FBI, from the FBI squad within the Washington field office, a squad I worked with when I was in the Justice Department. And I can say that they were true Iran threat experts and had worked the Iran threat over many, many years. Again, that level of expertise, the understanding of the nature of the threat, I mean, that's where it really matters to be focused on particular threat country. Without that understanding, that expertise over years, importantly, then they develop sources, you know, they have. That's where the sources make. So make such a big difference at the FBI level. They have people who, you know, tell them information that they need in order to identify a threat at its earliest stages. So that was the more, you know, I think newsworthy and remarkable development is the date right before we started this bombing campaign to test FBI agents from the Iran threat inside the United States. Order fired.
- [21:45]
Benjamin Wittes
And what do we know again, about the reason for their firing? My impression is that it was because they had been assigned to do work on the Mar A Lago investigation. Is that correct?
- [21:59]
Matt Olson
So I don't know. I don't know. I've not read any definitive account other than similar speculation or reporting along the lines that you just identified. So in my view, it certainly can't be based on the capabilities of these integrity of these agents. Everything I know about them is that they were, you know, they were, you know, operated at the highest standards of the FBI.
- [22:21]
Benjamin Wittes
I yield to nobody in my contempt for the Justice Department's current leadership and the FBI's current leadership. But if I were about to, you know, start bombing Iran, firing the. All the expertise about dealing with the Iranian threat vectors in the United States would not be something that I would consider to be in my self interest. Do you know of any reason why Pam Bondi and Kash Patel should be confident that they're in a position to deal with this by other means?
- [22:59]
Matt Olson
I mean, my. My take on this, Ben, is that it's inexcusable to have forced out those individuals both within the National Security Division at the prosecutorial level. But even more of a concern is losing the Iran expertise at the FBI. Again. These are agents who have gained years of experience working counterterrorism cases and years of experience working the Iran threat in the homeland. And it's not like there's dozens of people ready to fill their ranks. In my experience, these are a handful of folks who are uniquely positioned to run these investigations with a degree of expertise that has effectively prevented an attack against multiple plots over the past four or five years. And now we no longer, as American citizens, have the benefit of that expertise. I just don't think there's any question that we are not as safe as we were a week ago and certainly not a year and a half ago. I think it was a risk.
- [24:09]
Benjamin Wittes
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- [30:02]
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- [30:35]
Matt Olson
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- [30:42]
Matt Olson
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- [31:06]
Benjamin Wittes
All right, so the Iranian response often has a long tail. They absorb what they consider an affront and then they get revenge at some point, right? How long do you have to see things not happening before you start to breathe more easily? Is this a like, it feels to me like minimum of a year, 18 months before I would say like maybe Matt Olson was overreacting. How long will it take before you say, huh, maybe that threat was less than I thought it would be.
- [31:52]
Matt Olson
Look, I think it's more than a year or 18 months. If you look at the plotting to retaliate for the death of Qasem Soleimani, that plotting was being carried out years after he was killed. So you apply that same logic to the Supreme Leader and a number of other Iranian leaders who've been killed in the last several days. I think there's every reason to believe that again, as you said, Iran. This is my experience as well and my understanding from the Intelligence assessment is that Iran takes the long view here. This has been a long term commitment and project by Iran to have capabilities in the United States, whether through criminal proxies, whether through Hezbollah, to have the ability to really carry out for them an arm of their foreign policy, which is asymmetric terrorist attacks against their adversaries. And that's, you know, that is a, that is a platform of their foreign policy. That whether now is probably we're less likely to see something happen just because obviously they're completely preoccupied by the bombardment inside Iran. But I think that at some point in the near future, going out months to years, there'll be a heightened concern about retaliation inside the United States.
- [33:17]
Benjamin Wittes
All right, in that context, let's talk about 702. Now, you and I have had a number of podcast conversations about 702. Most of them when you were in government, and I don't recall it being a month before the statute was gonna lapse, that you came to me and said, hey, we gotta kind of get our crap together and submit something to Congress and, you know, start the current administration. Only the other day managed to convey to Congress that it actually wants 702 reauthorized. So I found that genuinely surprising given that they only have like six weeks now to get it done. How do you understand the politics of where 702 reauthorization is? Because I, I don't think I have a good read on it.
- [34:22]
Matt Olson
Well, I'm not sure I have a great read on the politics either, Ben, to be honest. You're absolutely right to observe that we're not about 30 some days away from the statue lapsing at sunsets. I think April 19, and I think when I came, when you were nice enough and gracious enough to host me at Brookings, I think the last.
- [34:44]
Benjamin Wittes
It was like a year out.
- [34:45]
Matt Olson
It was like a year. Yeah, it was like a year before. And I came with a whole plan of how we're going to get this done and to start sort of a campaign to talk about 702 and why it was so important and to work with Congress to get it reauthorized. So the politics are really hard. But if I could just sort of hearken back to our Iran conversation in terms of just the value, and maybe Lawfare viewers are fully up to speed on the value of 702, but it really drives the point home. It's one of the, if not the most important authority that the US government has to understand foreign intentions and capabilities, whether of terrorists or spies inside the United States and to be able to use the fact that they are on US Infrastructure. They use US Networks to communicate and it gives the US the ability to quickly and at scale collect the communications targeting non US Persons overseas, so foreign nationals outside the United States. And it's just, it's indispensable to our ability to understand the Iran threat, Al Qaeda, China, Russia, increasingly Darko traffickers. So it's a really extraordinarily valuable authority. It's unimaginable that Congress and the executive branch would let it lapse, given how important it is. But here we are approaching the sunset without a real clear path to its reauthorization. Although, as you point out in the last day, in fact, there was some news just in the last few hours about support in Congress and from the president for an 18 month straight extension of the law.
- [36:28]
Benjamin Wittes
All right, so I want to push you a little bit on the politics of it because it seems to me they've gotten very difficult and frankly, for good reason. When you guys got it reauthorized, I think you had one vote to spare in the House, is that right?
- [36:47]
Matt Olson
I think. Well, I mean, technically, maybe no votes to spare. It was. It was a tie. It was a tie. And therefore, yeah, it was like 212 to 212. And because it was a tie, an amendment that would have gutted the law was defeated because it didn't.
- [37:00]
Benjamin Wittes
I see. Okay, so maybe no votes. So less than one vote to spare. Since that time, the Republican campaigns against FISA in general, which have their roots in conspiracy theories and The Carter Page FISA, which of course had nothing to do with 702, have continued and many Democrats have watched the abuses of law enforcement in Minnesota and elsewhere and reasonably, I think, concluded that the last thing they want to do is to give the administration more power. And I don't understand where the votes are going to come from for this anymore. Who is the member who's going to look at this and say, I am confident that the certifications that Kash Patel and Pam Bondi are going to make to the courts are going to be factually accurate when we know that the Justice Department misrepresents things to courts. The courts have been very plain about that. Who were the votes who were going to say, yeah, I know they abuse power, but they're not going to abuse this power? Also, who are the people who were going to say, right, I know this involves reauthorizing. I want to claw back power from Donald Trump in general, from a presidency that's out of control in general. But this power is too important and I trust him to use it in the Iran context because he's been so trustworthy in the Iran context. I'm just perplexed at the question of where the votes come from to do this and also whether it's the right thing to do at this point.
- [39:14]
Matt Olson
Yeah, so can I. I've been working on FISA 702 since it was first passed in 2008. And I've sort of watched or been involved in the debate directly as it's gotten more difficult each time. I think this might be the fourth reauthorization. And each time I think the votes have gotten harder, the politics has gotten harder. In 2008, there was even, you know, even though there was some, you know, we're coming out of a period of upheaval with national security law, with Guantanamo and enhanced interrogations, there was still a degree of trust in the government. You hand the government a tool that is very valuable and has some oversight mechanisms built in, and you had a broad consensus among both parties in support of it in 2008, a consensus that has eroded over time and maybe at its lowest ebb today when it comes to section 702. Look, I do think, you know, if you start at one level, I do think there remains a broad consensus, even among the most, you know, fervent critics of Section 702, that it's a very valuable tool, that it has proven its worth over the years, including, you know, when I was at the Justice Department in assisting the government in stopping terrorist attacks and identifying spies. So the value, I think the value proposition is well established and I think there is a consensus in support of it.
- [40:49]
Benjamin Wittes
Yeah. And just to be clear, I do not in any sense doubt the value proposition.
- [40:54]
Matt Olson
Yeah, yeah, I know from our conversations. I do think, though, that you raised the right question in terms of the erosion of trust in the executive branch and where now on Capitol Hill, where there's going to be, if there's going to be sufficient support to not just reauthorize it, but to also fend off some of the reforms that I argued against, so called reforms that involved judicial warrants, for example, to query the data. That was something that I thought would have effectively gutted some of the most affected aspects of the way the statute is used. And that was where the vote was as close as it was what we just talked about. And I think, yeah, it's sort of hard to see where the votes come from because of the reasons you identify.
- [41:43]
Benjamin Wittes
I mean, my concern goes beyond like the warrant requirement that was proposed two years ago to me, is not responsive to the concern that I have, which is the entire program is predicated on a set of certifications that the Justice Department and the nsa, through the person of the FBI director and the Attorney General, make to courts. I had no doubt that I had my differences with Bill Barr. Certainly I had no doubt that those certifications would be accurate to the best of his knowledge. I can't say that about Pam Bondi. I had no doubt about that, about Chris Wray or Jim Comey or Bob Mueller or go back through the history of 702. I can't say that about Kash Patel. And then there's the fact that if FISA judges, like Article 3 judges everywhere else around the country were to be finding that people were making false representations in their courts, I would have no way of knowing that. And the way I have known that historically is that there have been compliance errors. There were, you know, and eventually they declassify opinions to that effect. But by the way, they never accuse the government of not acting in good faith. Right. And so you work with a basic understanding that there is a dialogue between the court and the NSD and NSA and the FBI in which everybody's acting in good faith. And yeah, there are mistakes and sometimes they're serious and they get dealt with. But now I don't have the confidence that. That people are acting in good faith. I don't have the confidence in the accuracy of the certifications. And I know that this is a group of people who federal judges around the country accuse of misrepresenting things in court. And so the whole basis for confidence in 702 as an architecture seems to me to be if I were Jim Himes or, you know, I don't even think you have to be Ron Wyden. Right.
- [44:16]
Matt Olson
You, you.
- [44:17]
Benjamin Wittes
It would be very much in doubt to me. And I, I honestly, as somebody who's always supported the program, who believes in the program and believes that Americans will die if you don't reauthorize it. I don't know how to argue to a member of Congress that it's a responsible vote that we can really trust Pam Bondi to give good certifications to the Fisk.
- [44:47]
Matt Olson
So let me see if I can convince you, as I imagine you're a sitting member of the House or Senate. Right. Because these are some of the same arguments that I made when I was at the Justice Department. I'm not going to maybe convince you, Ben, about the individuals at the very Tops top of the Justice Department or the FBI. But the argument I would make is that one, you know, there are hundreds of career people who work on this program as you described. It's architected in a way that requires legions of lawyers and operators from NSA to CIA to FBI and lawyers at DOJ who generate the declarations and the certifications that support the documentation that ultimately gets signed off on by the Attorney General and then is submit it to the fisc. But so there are that at one level there are again hundreds of people, career people working on this program and then it has to be approved not just within the executive branch, but as you know, by the FISA court, by an Article 3 judge. That process is more open and transparent than it's not, you know, it's classified, but it's more open and transparent than it has been in the past. For one, the law that was adopted in 2024 requires that there be a Vicus in all 702 proceedings. So there's an outside lawyer who basically represents the privacy and civil liberties perspective that has full access to all the documentation, all the intelligence, and can argue to the FISC that point of view. So it's not ex parte in the way it had been in the past. The opinions I think are routinely released after now. Not just they don't have to be an opinion that is, that identifies a mistake, but rather an opinion that it has a significant legal interpretation I think is the standard or something along those lines is released in adapted form to the public. Members of Congress are now permitted to attend Fisk hearings. So if there's a hearing on this, which there often would be for 702 certification process because it happens annually, it's a big deal. Members of Congress can attend those. So there's a degree of transparency around this process that I think should give members of Congress and the American public more confidence than I think you described. I ultimately think that while there's good reason and to be skeptical, I mean, I faced a lot of skepticism for members of Congress and talking about 702 and reauthorizing it two years ago. But of all the intelligence programs, one point I would make 702 would be the last one that you would want to use in a malicious or maligned manner because of the level of oversight, all three branches, FISA court involvement, career attorneys involvement, I just feel like it is not as susceptible to abuse as other intelligence authorities. Maybe that's not sufficient comfort for you under the current circumstances, but I do think it is. It was designed in 2008 to have a degree, a high degree of oversight to guard against the kinds of concerns and abuses that you're concerned about.
- [48:08]
Benjamin Wittes
Well, I mean, look, my degree of alarm is unaddressable because if you don't have confidence in the Attorney General and the FBI director and you think they are systematically looting the Justice Department, your faith in all kinds of processes deteriorates. So I want to ask one additional question about this, because in the event of a lapse, you are now describing a kind of perfect storm with respect to Iran, where on the one hand you have, you know, the attacks which give them this incredible motivation for revenge and revenge specifically of a type that they have attempted repeatedly in the past, that is terrorism and assassination domestically. Number two, you have a gutting of the FBI and Justice Department's capacity to respond to that. And number three, you have the potential lapsing of the principal statutory authority that the FBI and the Justice Department, were they functioning properly, would be using for leadership, intention and planning and that sort of thing. My memory is that what would actually lapse in a month is the authority to seek new certifications, not the existing certifications. First of all, is that right? And secondly, if it is, over what time frame does the deterioration of the intelligence we're collecting happen? How seriously, how quickly do we reach perfect storm weather?
- [49:57]
Matt Olson
Yeah, well, I think you describe it perfectly in terms of the confluence of events that would create this perfect storm of, of threat and lack of insight and lack of capability when it comes to people at the FBI and DOJ. There are provisions, sort of fail safe provisions in 702 to allow the authority, the existing authority to continue for a period of time, I think it's about a year, if my memory serves. But the point I would emphasize is even if there is a position, an argument that those authorities remain in effect for a period of time even if the statute lapses, we know from experience that the providers that are under directives to provide information to the government, those companies and their general counsels and their boards become very concerned about complying with the statute is no longer in effect, even if it has language that says certain directives remain in effect. And so I think the degradation of intelligence that's collected under 702 starts at midnight on April 19th. If there's not a new law, it might not be a totally going dark situation. It might not be turned off altogether, but it will start to degrade because of lack of compliance and concern about complying by the providers. That will, I think, start right away. And we Know that from some, you know, I know that from experience.
- [51:29]
Benjamin Wittes
Right. Because there was a lapse last time before the reauthorization was finally passed.
- [51:37]
Matt Olson
That's right. I think the time Before April of 24, there was a lapse and there was debate about the impact of those provisions. So, yeah, I think it's like they're starting really late. It's not too late. And maybe there's a lot of work going on behind the scenes to convince Congress importance of this and to find a legislative path forward. I think, you know, 18 month extension is certainly the right answer for the moment. My universal perspective then would be to end the sunsets on 702 and allow it, like every other intelligence authority, to remain in effect functionally. But that seems maybe you have to be in the cards.
- [52:18]
Benjamin Wittes
Yeah. So Stuart Baker argued for that on Lawfare recently. And I would just submit that whatever the terms of reauthorization, if it's possible at all, will not be clean and will not be permanent.
- [52:38]
Matt Olson
It's fair. You know, one other point to make quickly is that if it's not reauthorized, there's. There's another scenario that should give people concern, and that is the President relies Simply on Article 2 authority to engage in the same type of surveillance. So it'd be similar types of surveillance grounded in an expansive view of Article 2. It does not have any of the oversight from the private corps from Congress built in. So to me, if you want to build, if you want to create a sort of real, sort of nightmare scenario, that's the one to be most concerned about.
- [53:12]
Benjamin Wittes
We're going to leave it there. Matt Olson, you're always the bearer of such wonderful news. It's great to see your face. However, do come back early and.
- [53:23]
Matt Olson
Yeah, thanks a lot, Dan. Thank you. I appreciate it.
- [53:28]
Benjamin Wittes
The Lawfare podcast is produced by the Lawfare Institute. You can get ad free versions of this and other Lawfare podcasts by becoming a material supporter of Lawfare at our website, lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. The podcast is edited by Jen Patia and our theme music is from Alibi Music. As always, thanks for listening.
- [54:10]
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