Congress is staring down the barrel of a manufactured crisis. Section 702 of the Foreign Intelligence Surveillance Act (FISA) expires Friday, June 12. Under this authority, U.S. intelligence agencies conduct targeted surveillance of foreign nationals abroad, but agencies like the FBI, NSA, CIA, and National Counterterrorism Center routinely search 702-acquired data for Americans’ private communications, and they don’t need a warrant to do so.
Yet contrary to claims that the program will lapse or “go dark” if Congress fails to extend it, the Foreign Intelligence Surveillance Court (FISC) certified the program for another year in March. According to Hannah James, counsel in the Brennan Center’s Liberty and National Security Program, the risk of Section 702 imminently lapsing “is a nonexistent one,” she said. “It’s effectively a myth.”
Democrats and Republicans allied with the intelligence community are both exploiting the pretend deadline as a means to get something they want. Unfortunately, that something has little to do with ending warrantless surveillance on American citizens.
Next Friday, June 19, marks the beginning of Federal Housing Finance Agency (FHFA) Director Bill Pulte’s tenure as acting director of national intelligence (DNI). Pulte is replacing outgoing DNI Tulsi Gabbard, who happens to be close with her successor. A procedural vote in the Senate to begin debate on Section 702 failed 47-52 last week amid Democratic uproar over Pulte’s appointment.
Intelligence hawks are using the backlash against Pulte as a cover to stave off meaningful reforms.
Democrats are demanding that Pulte be removed from DNI before they will agree to any extension of Section 702. Politico reported that President Trump is expected to nominate a permanent DNI, though sources said he “continues to push back on any suggestion that he needs to placate Democrats to pave the way for a FISA extension.”
But if Trump were to pull Pulte’s appointment and nominate Mister Rogers as permanent DNI, there is a bipartisan compromise ready to go that would merely extend the program for three years, without adding warrants to Section 702 searches. In other words, intelligence hawks like the authors of this bipartisan bill don’t want Pulte, a partisan henchman of Trump, to run the warrantless spying program, but they’re fine with some other Trump appointee doing it, regardless of the implications for privacy and liberty.
In other words, they are using the backlash against Pulte as a cover to stave off meaningful reforms.
ONE SUCH HAWK, SEN. MARK WARNER (D-VA), vice chair of the Senate Select Committee on Intelligence, has been making the rounds, clutching his pearls over Pulte being named acting DNI. When Warner appeared on MS NOW’s All In with Chris Hayes on June 3, he seemed to feign outrage over Trump handing his henchman “the keys to all 18 of our intelligence agencies.” Throughout the interview, Warner enumerated the many reasons why Pulte probably shouldn’t have those keys, while simultaneously downplaying privacy concerns over Section 702.
“This comes at a time when we’ve got this debate over 702, which is a critically important tool,” Warner said. “I’m less worried about him there.”
On June 7, Warner told Dana Bash, co-anchor of CNN’s State of the Union, that Trump effectively threw a “live hand grenade” into FISA negotiations by naming Pulte acting DNI. Bash then asked Warner about a letter that Sen. Tom Cotton (R-AR), chair of the Senate Intelligence Committee, and Sen. Chuck Grassley (R-IA), chair of the Senate Judiciary Committee, sent to Secretary of State Marco Rubio warning of a “potential significant gap in foreign intelligence collection” if the 702 program were to expire.
“If Democrats don’t reauthorize this, are you risking national security?” Bash said, to which Warner replied: “The person who’s putting national security at risk is Donald Trump by choosing someone totally unqualified at a moment when our nation is at war with Iran, and our adversaries are coming at us.”
Again, foreign intelligence collection will continue under Section 702 through next year. As Andrea Fiegl, senior policy director for media and technology at Common Cause, observed on a call with reporters Tuesday, the notion that this authority is at risk of imminently lapsing amounts to “a pressure tactic designed to strip Congress of its leverage to negotiate reforms.”
Members of Congress seeking to reform Section 702 appear to have that leverage. House Speaker Mike Johnson (R-LA) and Senate Majority Leader John Thune (R-SD) have acknowledged as much this week, blasting Democrats for holding the 702 program hostage over Pulte’s appointment.
“The [Pulte] appointment is the best and starkest illustration yet of why there needs to be reform under FISA Section 702 and the surveillance space more broadly,” Donald Bell, policy counsel at the Project on Government Oversight (POGO), told the Prospect.
Warner has also claimed that there have been “major reforms” to Section 702, referring to the provisions of the 2024 FISA extension, and said he has been working to add more. That includes a measure to restrict the use of 702-acquired data against Americans in court, which despite being sold as a significant reform, “would have little to no effect,” said Elizabeth Goitein, senior director of liberty and national security at the Brennan Center.
The government “almost never directly introduces 702-acquired information in criminal cases,” Goitein said, “because if they do, it opens the door to regular courts.” At least one of those courts has ruled that the government violated the Fourth Amendment in conducting U.S. person queries without a warrant under Section 702.
Consequently, the path of least resistance for introducing evidence obtained through backdoor searches in court involves recreating that evidence through other less controversial means or authorities. Without a restriction on this practice, which is known as parallel construction, the measure “is essentially meaningless,” Goitein said.
To be clear, the Senate’s most recent legislative proposal to extend Section 702 does include a court order requirement, but it would apply only after Americans’ communications have been queried and reviewed. “This would be the equivalent of police searching a house without a warrant, finding documents that indicate, let’s say, tax fraud, and then using those very objects to get a warrant to retroactively bless the search,” Goitein said.
AT A SLEEPY CONSTITUENT EVENT ON JUNE 6, Mark Hannah, CEO of the Institute for Global Affairs at Eurasia Group, moderated a discussion on foreign policy in the Trump era with Rep. Jim Himes (D-CT), the ranking Democrat on the House Permanent Select Committee on Intelligence. Himes has been steadfast on the importance of Section 702 and the need to extend it. But during the event, which was held at The Meetinghouse in the town of Ridgefield, Connecticut, Hannah asked Himes whether he would be “less supportive of renewing FISA” as a result of Pulte being named acting DNI.
“Yes,” Himes said. “How’s that?”
Hannah, easing the tension with a chuckle, told Himes: “We’ve got you to flip-flop on the record here.”
Himes then took the time to outline his position on the warrantless surveillance program. He went on to say that Pulte, compared to Gabbard, is a “different organism.”
“He has zero national security expertise, and he exists solely to be the political hatchet man for the president,” Himes said. “That guy can’t have 702 authority.”
When Himes appeared on CBS News’s Face the Nation with Margaret Brennan the next day, Brennan asked him point-blank whether he would vote to extend Section 702 with Pulte serving as acting DNI.
“Look, if I had to vote again on this thing, knowing Bill Pulte’s background, experience, and what he’s done … I don’t think I could look myself in the mirror in the morning and say ‘this is a guy who should have control and access to this authority,’” he said. “I think there’s lots of Democrats and Republicans who feel that way.”
But that doesn’t settle the question of whether those powers should be given to anyone, not just Pulte. Privacy advocates contend that Pulte’s appointment further demonstrates the need to reform Section 702, namely by requiring U.S. intelligence agencies to obtain a warrant before collecting Americans’ communications data.
Patrick Eddington, one such advocate who first got involved in surveillance-related congressional fights as a Senate staffer in 2004, and is currently a senior fellow focusing on homeland security and civil liberties at the Cato Institute, believes a warrant requirement is essential for Congress to pass a long-term extension of Section 702. (To be clear, some privacy advocates would rather see Congress do away with the program altogether.)
Perhaps the most powerful forces standing in the way of fair votes on FISA reforms are the leaders of the Senate Intelligence Committee and House Intelligence Committee like Warner and Himes, who unlike leaders on the Senate Judiciary Committee and House Judiciary Committee, do not have primary jurisdiction over surveillance matters.
“The national security establishment doesn’t get a vote; nobody elected them,” Eddington told the Prospect. “The leadership of the Senate and House Intelligence Committees are political captives of the intelligence community.”
In October 2024, the Cato Institute filed a Freedom of Information Act (FOIA) lawsuit seeking Section 702 noncompliance records generated by the FBI and Department of Justice (DOJ) between June 9, 2023, and August 19, 2024. A recent court filing indicates the federal government identified nearly 40,000 “potentially responsive pages” to the request. The FBI intends to release approximately 128 pages of documents on August 15, and process 250 for release per month thereafter.
Although the parties to the lawsuit will determine whether it is possible to reduce the scope of relevant records on an ongoing basis, Eddington said that even after de-duplication, that could still leave tens of thousands or, at a minimum, thousands of pages of noncompliance records.
“You have a lot of members … in the Senate who are up in arms about Pulte, but most of them don’t seem to be very up in arms about the FISA Section 702 program being noncompliant,” he told the Prospect.
From where Eddington stands, Sen. Ron Wyden’s (D-OR) continued push to declassify the March FISC opinion has coincided with “Cato receiving the same treatment from the DOJ and FBI on a mountain of potentially relevant surveillance noncompliance incidents—all happening before yet another key vote on this deeply troubled and arguably unconstitutional mass electronic surveillance dragnet power. Coincidence?”
