The U.S. Capitol in Washington, DC, on April 18, 2024. (Photo by Jennifer Shutt/States Newsroom)
WASHINGTON — For the first time in nearly two decades, Congress missed a deadline to reauthorize a key surveillance agency, raising questions about whether the U.S. government can continue to monitor certain communications.
Lawmakers have regularly approved short- and long-term extensions of Section 702 of the Foreign Intelligence Surveillance Act since 2008, clearing the way for intelligence agencies to collect and analyze electronic communications from people living in other countries.
The government says it uses the program to secure information that can protect the United States or its citizens from attacks by foreign powers, terrorism, weapons of mass destruction, illegal drug trafficking and other threats.
Intelligence agencies are not supposed to target U.S. citizens, but lawmakers across the political spectrum and civil rights organizations have repeatedly voiced complaints about how officials handle the information they receive when an American is involved in a targeted conversation.
Even though lawmakers allowed Section 702 to expire on June 12, annual certification by the court overseeing the program should allow intelligence agencies to continue collecting data, experts say.
Kia Hamadanchy, senior policy adviser at the American Civil Liberties Union, said in an interview with States Newsroom that Congress provided for a safety net in a previous authorization that envisioned exactly this scenario.
“We’re pretty confident there won’t be any immediate consequences,” he said. “The way the law is written essentially says that if you have certification, you can continue monitoring under Section 702 until that certification expires.”
But that won’t happen until March 2027.
Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) agreed that safeguards were in place, but argued that members of Congress should not have taken the risk of letting that section of the Foreign Intelligence Surveillance Act expire.
“There is a dangerous assumption that the program will function smoothly when this statute expires on Friday,” he said. “Although I hope that the certificates issued a few months ago will still be valid even if the law is repealed. That is not a certainty. It will be a high-stakes litigation and there is a very real possibility that intelligence collection will stop, at least temporarily. And in this work of intelligence collection, protocols matter.”
Pulte announcement
Republicans and Democrats have worked in recent months to negotiate consensus on another years-long reauthorization with revisions. Those negotiations included extensive debate about what the government should do if Americans were involved in the conversations that were picked up by intelligence agencies.
But President Donald Trump’s announcement that Bill Pulte would temporarily lead the director of national intelligence following the departure of Tulsi Gabbard sparked concerns on Capitol Hill and halted negotiations.
Democrats said someone trustworthy needed to lead the ODNI, even for a tiny time, while Republicans argued that the two issues should not be linked and that repealing Section 702 posed a risk to national security.
Senate Intelligence Committee Chairman Tom Cotton, R-Ark., said not extending the program for a few weeks while lawmakers sort out their differences on a longer-term bill could have stern, even fatal, consequences.
“Well over half of all items in the President’s Daily Report come from Section 702,” he said. “It stopped terrorist attacks, it stopped the flow of deadly drugs into our country, it protected our troops abroad, it allowed us to rescue troops abroad.”
Senate Minority Leader Chuck Schumer, D-N.Y., claimed that allowing Pulte to temporarily lead the ODNI despite having “zero relevant experience” would “put Americans at risk.”
“We need real leadership in the intelligence community, not a national security novice sent to undermine the work of intelligence professionals,” he said.
Schumer added that Pulte could not be expected to “speak truth to power, conduct objective analysis and resist efforts to politicize the intelligence community in a job where facts are so important and it is so important that the president knows the real facts.”
Trump’s selection of Jay Clayton as his official nominee for office on June 11, as both houses of Congress were wrapping up their workweek, did not ease concerns or clear the way for a short-term extension of Section 702.
“Pulte has to go. He cannot take over the DNI role,” Schumer said. “Our national security is too important.”
More problems
However, Pulte’s short-term order is not the only obstacle to a long-term reauthorization.
Oregon Democratic Sen. Ron Wyden said significant changes need to be made and that under the powers provided by Section 702, “there have been simply too many violations of Americans’ rights across multiple administrations.”
“Every day that 702 goes into effect without reform is a day that Americans’ rights are threatened,” he said. “I believe Americans deserve new guardrails. If Congress wants to expand these powers, and that’s what we’re talking about, these guardrails are essential. And Americans deserve at least transparency about how these surveillance powers have been abused.”
The House Freedom Caucus, a group of far-right Republicans led by Rep. Andy Harris of Maryland, has also pushed for reforms.
“Congress can and should continue to pursue reforms to Section 702 without compromising national security,” it said posted on social media. “Necessary reforms – including requirements to search Americans’ private communications consistent with the Fourth Amendment – can also be passed by Congress without endangering national security.”
The Freedom Caucus added that it is “nonsense” for anyone to “claim that after Section 702 expires, lawsuits by communications and technology companies could suspend intelligence collection.”
Court certification
One of the reasons some members of Congress have expressed grave concerns about repealing Section 702, even if certified, is to advocate for years-long reauthorization, said the ACLU’s Hamadanchy.
“They’re trying to use this scare tactics to force people to vote for something they might not otherwise like,” he said.
The sense of urgency that comes from waiting until the last minute to vote on a reauthorization bill, increasing the possibility of terrorist attacks, can also be used to prevent amendment votes, according to Hamadanchy.
For example, this could block debate over whether a search warrant is required for Americans’ data collected as part of other Section 702 surveillance efforts.
“Under both administrations of both parties, there have been repeated requests regarding this number of Americans. They never told us about it,” Hamadanchy said. “What we do know is that they routinely search this database for the communications of Americans without a warrant.”
