A deep dive into FISA, modern surveillance authorities, and the growing tension between intelligence collection and civil liberties in the digital age.
Peter Mina: [00:00:12] Good afternoon. I’m Peter Mina, founder of the Mina firm, a civil rights and federal employment law firm in Washington, D.C., as well as a former deputy officer for civil rights and civil liberties at the Department of Homeland Security, where I worked to integrate civil rights and civil liberties protections into the department’s national security programs. And you are listening to The Steady State Sentinel from The Steady State.
We are facing an existential threat: growing autocracy in the United States. The Steady State Sentinel is a place where we and our distinguished guests use our national security expertise to discuss and analyze the decisions and acts of this administration that feed that autocratic slide and threaten to supplant the pillars of our constitutional democracy.
Today, we’re talking with Jim Petrila. Jim retired from the Central Intelligence Agency in late 2018, where he practiced in the Office of General Counsel for 25 years. During his last several years at the CIA, he was responsible for management and oversight of attorneys within CIA’s Operations Directorate. He provided legal advice on a wide variety of cutting-edge legal issues across a broad range of matters, including counterterrorism and technical collection operations.
He had considerable experience in working with senior lawyers in the intelligence community, together with frequent engagement with congressional oversight committees on a variety of controversial issues. He served as deputy legal advisor at the National Security Council from 2013 to 2015.
Throughout his career, Jim provided regular briefings and training modules to CIA officers on topics such as Executive Order 12333, counterterrorism and related authorities, and the Foreign Intelligence Surveillance Act. He has been an adjunct professor of law at George Washington University School of Law since 2019.
Jim holds a J.D. from the University of Virginia and a master’s degree from Stanford University in Russian history. He has a bachelor’s degree from Knox College in Galesburg, Illinois, with a major in Russian studies.
Today, as we alluded to in his background, we’re going to talk about the Foreign Intelligence Surveillance Act, and in particular Section 702, which some of you may have seen in the news — what that is, what it means, not only for congressional action, but also what it means for the collection of information on Americans like you and I.
Good afternoon, Jim. Welcome to the podcast.
Jim Petrila: [00:02:33] Well, thank you for having me, Peter. I’m delighted to talk about the Foreign Intelligence Surveillance Act — one of my favorite topics.
Peter Mina: [00:02:40] I think you’re one of the few people that can say that, Jim.
So maybe before we get started talking about the meat of the Foreign Intelligence Surveillance Act, or FISA, tell us a little bit about your current work and what you’re working on right now.
Jim Petrila: [00:02:56] So, as you mentioned, I retired — I can’t believe it’s been nearly eight years. And I’ve been doing some writing for The Steady State since I think the mission of The Steady State is so critical.
Jennifer Gregg, our extraordinary editor, was kind enough to publish the series that I wrote on the Removal Enterprise that the government has established — from the apprehension of undocumented people to their detention and their rendition. So there’s a five-part series on that.
Peter Mina: [00:03:38] And I encourage everyone to check that out on Substack. It is a really important and powerful read.
Jim Petrila: [00:03:45] Thank you.
And I’ve written a couple of other things. I have an article out on Havana Syndrome and what I think are serious issues with the way CIA has handled that issue across administrations, by the way.
I think it may have fallen into a little bit of a dark hole, even though the current DNI has promised she would get to the bottom of it. And the problem is, at the bottom of Havana Syndrome is the Russians.
Tulsi has a real dilemma there.
And then also, given some of the craziness going on with this investigation into the massive non-existing conspiracy around — I don’t know how many elections now — 2016, 2020. If Democrats have success in 2026, it’ll be 2026 next.
It’s like all aboard the retribution train. And the way in which the Department of Justice has just turned itself on its head to turn itself into a retribution unit is really pretty shameful.
I’ve been trying to comment on those things.
Peter Mina: [00:05:17] Going back to the beginning, Jim — what led you to a career in national security and ultimately to join the CIA?
Jim Petrila: [00:05:27] Well, I’ve always been interested in the area, and part of that is family background. Both of my father’s parents were Lithuanian immigrants, and I knew we had family back there.
When you’re a kid, you fantasize about what they’re doing behind the Iron Curtain of the Soviet Union. I think that may have been a triggering thing.
I had the chance to go to Knox College, where I majored in Russian studies, and that was eye-opening.
Then I was in a Ph.D. program in Russian history for four years and was about two-thirds of the way through my dissertation when I realized it was fundamentally flawed.
I was writing on right-wing opposition to the czar around the turn of the century, focusing on the fallout from the Russo-Japanese War and the 1905 Revolution. But I realized the thinker I believed had provided the intellectual basis for right-wing opposition was regarded by everybody as a whack job.
He self-published his work and no one read it. So I thought, “I need to get a job.” So I went to law school.
Peter Mina: [00:07:16] That is an answer for many of us: “I need a job, so I might as well go to law school.”
Jim Petrila: [00:07:21] Private practice was fine for a couple of years to pay off debts, but then I had the chance to go work at NSA.
I had no idea what they did. “No Such Agency,” right? “In God We Trust, everyone else we monitor.”
Then I traded in a very long commute and a wonderful work environment for a shorter commute at CIA under John Rizzo, who I think was the one person most responsible for building CIA’s Office of General Counsel.
I wound up with a shorter commute, equally — if not more — interesting work, and an equally good work environment.
Peter Mina: [00:08:18] I think it’s really common for first-generation Americans to find their way to public service — myself included. And I feel like many of us who have been in the national security space share that experience.
Why don’t we start with the real basics about FISA? What is it? How did it begin?
Jim Petrila: [00:08:49] It’s a really good place to begin.
The Foreign Intelligence Surveillance Act passed in 1978. It was passed largely as a result of revelations during the Church and Pike Committee hearings.
Prior to that, there was a domestic terrorist attack in Ann Arbor where some “chuckleheads” blew up the CIA office. That led to arrests and ultimately to what became known as the Keith case — formally United States v. United States District Court for the Eastern District of Michigan.
Which, frankly, deserves an award for one of the strangest case names ever.
Peter Mina: [00:10:10] I don’t know that I’ve ever heard of a case where it’s the United States against a court.
Jim Petrila: [00:10:15] It’s named after Judge Keith, who was the first African-American district court judge in the Eastern District of Michigan. Brilliant judge. Howard Law graduate.
What happened was the defendants demanded disclosure of surveillance information under Title III procedures. The government refused, saying the information was too sensitive.
The court ruled against the government and said: law enforcement is law enforcement. If this is a domestic criminal investigation, Title III applies.
That case, combined with revelations of widespread domestic surveillance, led to the creation of FISA.
The challenge was: how do you provide the government enough authority to collect national security intelligence while also recognizing that incidental collection of Americans’ communications is inevitable?
That tension is still at the center of the debate over Section 702 today.
Peter Mina: [00:14:48] Let me ask a question before you move on. When you say “a person in the United States,” do you mean a foreign national? A U.S. citizen? Both?
Jim Petrila: [00:15:11] Classic lawyer answer: it depends.
FISA distinguished between domestic wire communications and radio communications — which, at the time, largely meant satellite communications.
The law treated “birds” differently from “ducks.” That’s an old FBI analogy.
If you were targeting a known person in the United States, you needed a warrant.
If you were targeting foreign communications through satellites, the rules were different. NSA could collect foreign communications even if one end of the communication was inside the United States.
That framework made sense in the 1970s. Then fiber optics changed everything.
Peter Mina: [00:21:13] So now we move forward to 9/11, and the Bush administration has to decide whether to modernize FISA or bypass it altogether.
Tell us about that decision and whether you see echoes of it today.
Jim Petrila: [00:21:51] The intelligence community knew technology had changed. Communications had moved from satellites to fiber optic cables.
There was a decision point: do we amend the statute so “birds and ducks” are treated the same? The decision was made not to pursue legislative reform.
The 9/11 hijackers communicated largely over the internet. NSA missed much of that because those communications were now “wire” communications under the statute.
After 9/11, the Bush administration had the chance to modernize FISA. Instead, they relied on an extraordinary Office of Legal Counsel opinion tied to the Authorization for Use of Military Force.
Essentially: “We’re at war, so Article II powers let us bypass FISA.”
That became the Stellar Wind program.
The administration convinced telecom carriers to cooperate based on presidential letters rather than court orders.
Eventually lawsuits were filed against AT&T and other carriers. Instead of an orderly modernization process, the government wound up in a political and legal mess.
That’s ultimately what produced Section 702.
Peter Mina: [00:29:35] If I’m an American with Verizon as my provider, is there any way I’m notified that government agencies may be collecting my communications — even incidentally?
Jim Petrila: [00:30:09] No. And that’s one of the major controversies around 702.
The data goes into dedicated databases. Then queries can be run against those databases.
The major dispute is whether the government should need a warrant before querying information related to a U.S. person already swept up in the database.
For example: suppose investigators are tracking a Mexican drug cartel and discover a U.S.-based gun dealer may be supplying weapons.
Could investigators query the database for that U.S. person to determine whether there are connections to foreign actors?
That’s where the warrant debate comes in.
Peter Mina: [00:33:24] There’s obviously a legitimate national security purpose here. But there’s also no warrant requirement, no probable cause requirement, and no notice to Americans.
How should people think about that tension between security and civil liberties?
Jim Petrila: [00:34:33] Unlike Title III criminal wiretaps, FISA relies heavily on internal constraints.
There are audits. There are targeting procedures. There are minimization rules. There are justification requirements now written into Section 702 itself.
But ultimately the system depends on trust.
Do you trust the FBI, NSA, CIA, and others to use these authorities in good faith?
That’s the dilemma.
Peter Mina: [00:36:05] Given the dismantling of oversight structures across government, it’s increasingly hard for people to place that trust.
What do you see as the future of Section 702?
Jim Petrila: [00:36:49] Section 702 is absolutely critical to intelligence collection.
But I think the bigger concern now may actually be third-party data brokers.
Every time you use your phone, massive amounts of data are collected. We’re not the customers — we’re the product.
Private companies collect that data and sell it. And right now, I’m not sure there are meaningful limits on what the government can buy from those brokers.
That’s the elephant in the room.
Peter Mina: [00:38:46] And what recourse does someone have if that information is wrong?
Jim Petrila: [00:38:56] The Privacy Act provides some mechanisms. But if you don’t know the information exists in the first place, what can you do?
You may not realize there’s an issue until you show up at the airport and suddenly TSA PreCheck no longer works.
Peter Mina: [00:39:17] Exactly.
And on that note, I think it’s critical for everyone to get smarter about FISA and Section 702 because these authorities impact daily life — every smartphone, every communication, almost everything we do online.
Jim, thank you so much for your time and for breaking this down in a way people can actually understand.
Where can listeners find more of your work?
Jim Petrila: [00:40:06] Certainly through The Steady State.
I’m also connected with a newer venture started by former CIA operations officer Ed Bogan called the Institute for the Study of States of Exception.
It complements The Steady State very well. It focuses on emergency powers and how emergency authorizations can evolve into illiberal structures.
Peter Mina: [00:40:55] Great. So lots of interesting reading and analysis out there from Jim and others.
If you liked what you heard today, please subscribe to The Steady State Sentinel wherever you get your podcasts and give us a five-star review on Google. Those subscriptions and reviews help us get this important content to the widest audience possible.
If you’d like to hear more about FISA and Section 702, check out my prior interview with Alex Stamos, former Civil Liberties Protection Officer at ODNI.
And as always, The Steady State Sentinel is for you, our listeners, and we want to hear from you.
Remember: protecting our democracy is not a spectator sport.
This is Peter Mina for The Steady State Sentinel, still standing watch.
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The Steady State Sentinel is produced by The Steady State, a community of former national security professionals who spent their careers safeguarding the United States at home and abroad. Today, we continue that mission by staying true to our oaths to defend the Constitution, uphold democracy, and protect national security. Each episode features expert hosts in conversation with accomplished guests whose experience sheds light on the crises and challenges facing the nation.