A key federal spy tool is at risk of sunsetting on Friday unless Congress passes an extension of the authority that allows the government to surveil foreign persons without a warrant.
A Senate deal to extend Section 702 of the Foreign Intelligence Surveillance Act for three years was upended last week after seven Republicans joined almost all Democrats, except for Sen. John Fetterman (D-PA), to tank a procedural vote to kick off consideration of the extension on the floor.
The failure to advance the Senate’s extension of Section 702 is the latest roadblock in a monthslong battle to pass a long-term deal for the government surveillance program. Congress has had to pass two short-term extensions this year to keep the program viable, with the House passing three deals, one of which was rejected by the Senate.
Senate Majority Leader John Thune (R-SD) said Friday that the upper chamber will “take another run at” renewing the spy program ahead of the June 12 deadline, but acknowledged Republicans will need “some help from Democrats,” who pulled their support for the bipartisan deal over President Donald Trump’s appointment of housing official Bill Pulte as acting intelligence chief.
Democratic support for an extension of the surveillance program will be necessary to overcome the chamber’s 60-vote filibuster threshold. But Democrats are withholding their support over Pulte’s nomination, arguing he has used his tenure as director of the Federal Housing Finance Agency and chairman of Fannie Mae and Freddie Mac to make criminal referrals against Trump political opponents for allegations of mortgage fraud.
Sen. Ron Wyden (D-OR) said in a Friday statement that “Bill Pulte’s appointment as acting Director of National Intelligence is a symptom of the larger problem: Warrantless FISA surveillance depends on a handful of government officials to choose not to misuse the most powerful spying apparatus the world has ever seen.”
“Firing Pulte won’t solve the real problem,” Wyden continued. “Americans are demanding real protections written into the law, not promises that the next guy will be trustworthy.”
Thune has criticized Democrats’ refusal to vote for the three-year extension due to Pulte’s appointment, calling it a “dangerous game.”
Meanwhile, Republican Sens. Tommy Tuberville (AL), Rick Scott (FL), Rand Paul (KY), Eric Schmitt (MO), Josh Hawley (MO), Mike Lee (UT), and John Kennedy (LA) opposed the measure over the lack of a warrant requirement.
Conservative hardliners have been pushing for reforms, including a warrant requirement, to be included in any extension of the spy power, arguing the current rules allow the government to spy on U.S. citizens as well.
“We can’t give the swamp unchecked power to spy on law-abiding Americans,” Scott said in a statement on X. “Warrants MUST be required to protect our constitutional liberties and uphold the Fourth Amendment.”
The key government spy tool, which allows the U.S. government to collect data of foreign nationals located abroad, has been criticized in recent years, as U.S. citizens’ communications can be swept into intelligence agencies’ search queries if they are in contact with those individuals. Critics argue the program allows the collection of private citizens’ information without court approval, while advocates maintain the tool is crucial for national security.
Scrutiny over the FBI’s use of surveillance tools was heightened after the 2016 investigation into the Trump campaign’s alleged ties to Russia, of which a 2019 Justice Department inspector general report found significant errors and omissions during the investigation by the intelligence agency.
The Senate deal did contain new protections meant to win over privacy hawks, as well as a three-year ban on central bank digital currencies, a deal sweetener for House Freedom Caucus members, who have long pushed for a ban on a federal digital currency.
But ultimately, the reforms were not enough to win over the GOP holdouts. Republican leadership will now have to work to find a solution to advance the extension, or the program will go dark on Friday, when a 45-day extension passed by Congress back in April is set to expire.
One House Republican aide told the Washington Examiner that Democratic opposition to an extension over Pulte’s nomination “worked out in our favor, ironically,” giving House GOP hardliners more leverage, and time, to get their demands into a deal.
If passed, the three-year Senate deal would face an uphill battle in the House, as hardliners are pushing for a permanent ban on central bank digital currencies.
Rep. Andy Harris (R-MD), the chairman of the House Freedom Caucus, said without a permanent ban, a FISA extension would be a “nonstarter.” He and other caucus members have outsize sway given Johnson’s two-seat majority.
“If they want to bring this under a rule in the House, it’s going to have to include a permanent ban on CBDC,” Harris added.
Talks with hardliners in the House are ongoing. On Thursday, members of the House Freedom Caucus and House intelligence committee met in a SCIF to discuss the FISA program, a source familiar with the matter confirmed to the Washington Examiner, as the national security hawks look to convince the conservative hardliners to support an extension.
Still, without Democratic support in the Senate, the upper chamber will not be able to send its version to the House for consideration, and it is unlikely that Democrats will support any extension of FISA without the White House pulling Pulte from his temporary position as director of national intelligence.
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When asked whether the White House could do anything to help get Democrats on board, short of removing Pulte, Thune told reporters, “I don’t know, maybe.”
Thune added that he has spoken with Pulte and that the housing official is “committed to implementing all the 702 reforms,” noting that he thinks the issue of the national intelligence chief should be dealt with separately.
“The Democrats blocking us getting on the bill and then eventually passing it, I think, is a really dangerous position to take for the country,” Thune said.