The House failed to approve an extension of a powerful spying authority on Thursday, putting it on course to statutorily lapse for the first time ever, even as President Donald Trump named his choice for a permanent spy chief in an apparent bid to defuse a fight with Congress.
Hours after the 218-198 vote on Section 702 of the Foreign Intelligence Surveillance Act — which was fraught with bipartisan objections to Bill Pulte’s appointment as acting director of national intelligence — Trump said he would name Jay Clayton, the U.S. attorney for the Southern District of New York and former chairman of the Securities and Exchange Commission, to serve in the role permanently.
Section 702 allows the NSA and FBI to collect communications of foreigners abroad without a warrant, but the calls, texts and phone calls of Americans communicating with foreign targets can also be gathered, a caveat that has long raised constitutional concerns with privacy advocates.
“Few people anywhere in the Legal Community are respected at the level of Jay,” Trump said in a Truth Social post Thursday. “I encourage the United States Senate to confirm Jay as soon as possible.”
An impasse between the White House and Democrats has persisted, with Democrats warning that Pulte’s role in mortgage-fraud reviews last year could foreshadow an abuse of intelligence tools to target the president’s political opponents. Speaking to reporters in the Oval Office, Trump praised Clayton, and said Pulte would only be in his post “for a short while.”
It’s unclear how the appointment of Clayton, who like Pulte appears to lack national-intelligence experience, would affect the outcome of a 702 extension. After Thursday, the House is scheduled to recess until June 23, making it likely that the spying power would statutorily lapse for at least a week.
In a statement, Sen. Mark Warner, D-Va., the vice chairman of the Senate Intelligence Committee, said that he has “known and respected Jay Clayton for many years” and believes “he is a capable public servant.”
But Warner said the timing of the announcement is suspicious, noting that “the president could have put forward a qualified nominee from the beginning. Instead, he waited until the House of Representatives went out of town, choosing a path that raises the risk of an entirely avoidable lapse in a critical national security tool.”
Warner added that the Senate would not take up a FISA extension unless the administration guarantees that Pulte will not serve as acting DNI.
“Either Director [Tulsi] Gabbard must remain in place or the administration must designate the Senate-confirmed Principal Deputy DNI as the acting head through any transition,” he said, referring to Aaron Lukaas, a number-two official in that office.
“I have known Jay Clayton for decades and worked with him during his time as Chairman of the Securities Exchange Commission,” Rep. Jim Himes, D-Conn., the top Democrat on the House Intelligence Committee, said in a statement.
“During that time, he had the independence of mind and respect for the law that are necessary for any Director of National Intelligence,” Himes said. “I am hopeful that he will maintain that independence and provide apolitical high-quality intelligence to policymakers. The Senate should evaluate and confirm his nomination quickly. It is critical that we have a permanent DNI in place and move past the Bill Pulte disaster.”
Section 702 of FISA, enacted in 2008, codified parts of the once-secret Stellarwind surveillance program created under the Bush administration after the Sept. 11, 2001, attacks. In 2013, former NSA contractor Edward Snowden disclosed documents detailing how the authority was used, fueling a global debate over privacy and mass surveillance. The program is frequently used to track myriad national security threats.
In March, the Trump administration notified Congress that the Foreign Intelligence Surveillance Court renewed certifications for the surveillance program, letting it operate for another year even amid an expiration. The certifications can cover broad categories of national security risks, such as nuclear weapons and cyber threats.
But the split between the court’s recertification process and Capitol Hill’s role in extending the authority itself can create uncertainty for providers — such as AT&T and Microsoft — who are required to comply.
A congressional aide, speaking on the condition of anonymity to communicate private discussions, said staff on the House intelligence committee are assessing how the spying authority can still be used in the event of a lapse. One concern, said the aide, is that data collected under the 702 authority could become increasingly out-of-date, and, therefore, be less effective.
Civil liberties advocates contend that Section 702 collection can continue even after a statutory lapse because of the way annual certifications are approved, and that other authorities remain available to support national security operations.
A former intelligence official told Nextgov/FCW that, while collection activities would immediately, lawfully continue, firms may enter an “odd legal space” where providers mandated to comply with the law could argue that they don’t need to supply information. If access under 702 is curtailed, the intelligence community would likely explore ways to lean on other lawful collection authorities, the former official added.
Glenn Gerstell, former general counsel at the NSA, echoed these points.
“Companies may say they are not 100% certain the authority still applies,” he said in an interview.
Two areas — terror attacks and cyberattacks — might present a higher risk with the authority having lapsed, Gerstell added, because they are fast-moving developments that often rely on single tips that intelligence analysts must run down.
“702 is a great way to find and pursue that tip. It’s a great tool for quickly getting an answer,” he said. “If the FBI hears a ransomware attack has been made, and they believe it to be foreign-generated, they’re going to want to move with lightning speed to figure out where it’s coming from.”
“It feels like we’re playing Russian roulette with national security,” he later added.
The NSA, CIA, FBI and the Office of the Director of National Intelligence — which all have authority to access Section 702 data — did not return requests for comment.
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