The Senate is inching closer to reviving a key government surveillance program that expired in mid-June, but a solution may not become permanent until this fall.
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The Senate on Tuesday confirmed Jay Clayton to become the next director of national intelligence, replacing Tulsi Gabbard, who stepped down from the position last month. Clayton’s nomination has long been viewed as the final obstacle to overcome the gridlock stalling reauthorization of the government spy powers.
But there’s still a long way to go for the program to be renewed. And some Democrats say there is time to hammer out a better deal.
“We’re not under the time crunch that we anticipated because the communication providers are still cooperating,” said Sen. Mark Warner, top Democrat on the Senate Intelligence Committee. “This was always going to be a lift. The majority of my caucus probably won’t support it … but those of us who are in this national security environment understand it’s got to get done.”
Clayton’s nomination was approved along party lines as Democrats cited concerns he may weaponize the position to benefit President Donald Trump. However, Democrats view him as a better alternative to Bill Pulte, who is currently acting as the interim director of national intelligence until Clayton is formally sworn in.
Pulte is reportedly pushing to delay Clayton’s swearing-in as he completes some projects, a request that could further stall progress on reauthorizing Section 702 of the Foreign Intelligence Surveillance Act, or FISA.
“First, we have to make sure Pulte is out,” Senate Minority Leader Chuck Schumer, D-N.Y., said on Wednesday. “Many of us have wanted to get 702 enacted, but it needs some reforms.”
Even if senators can come to an agreement before leaving next week for the August recess, the program is set to remain dark until September. That’s because any deal would need to be approved by the House, which is not scheduled to return until Aug. 31.
Debate over FISA renewal rages on
The debate over reauthorizing FISA has been ongoing since it was enacted. The program is an intelligence collection authority that allows the intelligence community to “collect, analyze, and appropriately share foreign intelligence information about national security threats.”
The tool allows intelligence agencies, particularly the National Security Agency, to collect communications of foreign targets located outside the United States without needing a traditional warrant. In doing so, the authority allows the U.S. to track potential terrorist threats, espionage and more.
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But Section 702 has periodical expiration dates, meaning Congress must routinely reauthorize the spying powers. While some national security hawks pushed for a clean extension, meaning the program would be extended without any changes, there are some members of Congress who believe the program needs substantial reforms before it can be reauthorized.
Those competing views pose a rare fight that is not beholden to party lines. In fact, it has united conservative Republicans with progressive Democrats in a way that has made it hard for top congressional leaders to get anyone on the same page.
The main disagreement is over the sweeping authority Section 702 gives intelligence officials when it comes to collecting communications without needing a warrant. While the section only allows the targeting of non-U.S. citizens abroad, it can sometimes sweep up communications from Americans living inside the country.
As a result, some lawmakers have pushed for reforms and language that would require warrants before the FBI can search 702 databases for U.S. citizens’ data. Utah Sen. Mike Lee and Rep. Mike Kennedy have both called for reforms involving warrant requirements.
But intelligence officials warn those requirements could slow investigations.
Republicans urge Democrats to renew FISA
Although senators were on track to approve a bipartisan deal extending the program earlier this summer, those plans were scuttled after Trump abruptly told Clayton not to appear for his confirmation hearing on Capitol Hill. Instead, the president wanted to keep Pulte, a close Trump ally, as the interim director a little longer.
That decision infuriated Democrats, who accused Pulte of having no experience in intelligence and using the position to target Trump’s opponents. Democrats then tanked the bipartisan FISA deal, vowing not to renew the program until Pulte was removed.
Now, Republicans are urging Democrats to drop their hold on the legislation.
“Democrats have refused to pass a bipartisan FISA bill until a new DNI is confirmed,” a spokesperson for Senate Intelligence Committee Chair Tom Cotton, R-Ark., said in a statement. “Now that Jay Clayton is confirmed, it’s time for them to stop playing politics with national security and put up the votes to give our intelligence community the tools it needs to keep this country safe.”
Others said that if a national security concern occurs because of a FISA renewal delay, Democrats would be responsible.
“The blame for any possible national security incident that comes from this will sit squarely at Senate Democrats’ feet, and we will make sure the American people never forget that,” Rep. Rick Crawford, chairman of the House Intelligence Committee, told Punchbowl News.
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