WASHINGTON — A powerful surveillance tool backed by the intelligence community is scheduled to expire Friday after the House failed to pass an extension and left town for 12 days.
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It would be the first time Congress has allowed Section 702 of the Foreign Intelligence Surveillance Act to lapse since the law passed in 2008. It grants the government powers to spy on foreign nationals living abroad as part of counterterrorism efforts without requiring warrants.
Congress has struggled for months to reach a deal that placates privacy hawks on the left and the right, who demand restraints they say are necessary to prevent the law from being abused. They argue that there are insufficient guardrails on the government’s sweeping up private information about Americans.
Last week, President Donald Trump disrupted already fragile negotiations for a long-term renewal of Section 702 by tapping housing official Bill Pulte to be acting director of national intelligence. Pulte is a Trump ally with no intelligence background who’s known for targeting Trump critics with mortgage fraud investigations.
Democrats all but cut off the FISA Section 702 negotiations, making it clear they wouldn’t vote to reauthorize that extraordinary power if it’s placed in the hands of Pulte, who Trump said would take over from outgoing DNI Tulsi Gabbard on June 19.
“Pulte’s got to go. The DNI role is too important,” said Senate Minority Leader Chuck Schumer, D-N.Y. “He cannot be there — no ands, ifs or buts. No matter what else they do.”
On Thursday, the House failed to pass a short-term extension of FISA Section 702 through July 2 by a vote of 198 to 218. Not only did it fail; it fell far short of the two-thirds requirement to pass under the fast-track process used by GOP leaders.
Nineteen Republicans joined 199 Democrats to vote it down. Just seven Democrats voted for the short-term extension.
Seeing no path, House Republicans then adjourned with no plans to return to session until June 23.
House Speaker Mike Johnson, R-La., accused Democrats of playing politics with national security.
“We did everything within our power to try to ensure that this statute does not expire, and the Democrats are using it as a political hostage now,” Johnson said Thursday. “They are willing to jeopardize the safety and the security of the American people to make a cheap political point.”
But a temporary lapse over the next week won’t mean FISA is shut down, said Sen. Ron Wyden, D-Ore., noting that most FISA powers will remain in effect until 2027 even if the program lapses.
Wyden’s office pointed to a report by New York University’s Brennan Center for Justice that said FISA court certifications for surveillance authority were approved in March and will stay valid through next March even if Section 702 lapses this week. The report said companies would still be legally obligated to comply with directives to turn over targets’ communications data.
“Congress planned for potential lapses and made very clear that Section 702 surveillance may continue under existing certifications even if the statute sunsets,” the Brennan Center report said.
Rep. Don Bacon, R-Neb., insisted that expiration would be dangerous, disagreeing with the critics who downplayed its significance.
“Fifty percent of our intelligence comes from FISA. That would be bad,” Bacon said. “And we have stopped terrorism attacks from 702. Without it, we would have had many more people killed. It’s a terrible buffoonery, a disgrace of our country that we could let this drop because of partisanship.”
In an apparent act of damage control, Trump announced Thursday that he will nominate Jay Clayton to be the next permanent DNI, but only after the failed House vote. Clayton, a federal district judge in New York, is a former chairman of the Securities and Exchange Commission who is well respected even by Democrats. But he would need to be confirmed by the Senate, and until then, Trump still plans to put Pulte in control temporarily.
“I’ve known and respected Jay Clayton for decades. His intelligence, temperament and deep commitment to public service will make him a terrific DNI. Had this nomination been made a week ago, lots of pain might have been avoided,” said Rep. Jim Himes of Connecticut, the top Democrat on the Intelligence Committee.
The Senate also tried and failed to fast-track a renewal of the FISA surveillance power.
Sen. Mark Warner, D-Va., wondered why Trump would wait until Congress adjourned to announce Clayton as his nominee. He also called Pulte a “huge national security risk.”
“I’m frankly less worried about what he might do to 702 and more worried about him getting keys to the 18 intelligence agencies and his complete disregard of confidential information at the mortgage industry,” Warner said. “And now we’re going to give him the keys to the intelligence agencies? It’s crazy.”
Sen. Richard Blumenthal, D-Conn., said he is “absolutely frightened by the possibility that FISA would expire.”
He said all Trump needs to do to secure a reauthorization in Congress is keep the power out of the hands of a “political hack” like Pulte.
Wyden, an outspoken privacy hawk, has said there won’t be a long-term FISA Section 702 renewal without guardrails on warrant requirements and location tracking.
“The path to 60 votes, which is the ultimate objective here, is tied to reforms,” he told reporters.
Bacon, a retiring centrist Republican, recommended that Trump change course and keep Pulte away from the national intelligence director’s office to pave a way to renew FISA Section 702.
“If you want to get FISA voted on, you can’t put him in. Put somebody that has intel experience,” he said.
