Lawmakers Don’t Know What Will Happen When FISA Goes Dark

A critical spy powers program is set to go dark Saturday after Congress failed to reauthorize the initiative, which is seen as essential to U.S. surveillance abroad.

The expected lapse comes after Democratic lawmakers refused to back a short-term extension of the Foreign Intelligence Surveillance Act program on Thursday over concerns about President Donald Trump’s move to install Bill Pulte, director of the Federal Housing Finance Agency, as interim director of national intelligence. He has been criticized by both parties as a partisan with no intelligence background.

The move followed months of debate over FISA’s Section 702 surveillance program, which has long been controversial in both parties and requires some bipartisan support to reauthorize.. The National Security Agency says that intelligence derived from the program accounts for more than half of the president’s daily briefing and is integral to the country’s counterterrorism posture.

Trump took steps that could quiet the rancor over Pulte by nominating former Securities and Exchange Commission Chair Jay Clayton as his permanent intelligence director on Thursday afternoon. But his announcement came after House members had left the building for a weeklong recess with no action expected in the lower chamber on FISA until they return the week of June 23.

Lawmakers are split on the consequences of a pause. The program was recertified in March by the Foreign Intelligence Surveillance Court, allowing FISA to continue collecting information under the law for one year. But it’s unclear whether the program will retain its full capabilities while operating without reauthorization from Congress.

“There’s this whole legal debate that we’ve been sort of thinking about academically for a long time, which is: Can the program survive under the judicial certification?” Rep. Jim Himes (D-Connecticut), the ranking member on the House Intelligence Committee, told reporters Thursday. “I have never wanted to test that, but we may end up testing that.”

Virginia Sen. Mark Warner, the top Democrat on the Senate Intelligence Committee who has led opposition to renewing the measure, told reporters Thursday that without reauthorization, companies that share information such as phone records with the government could choose to opt out of the program.

”We were told [during the last cycle] that the communication providers, the telcos, Googles, and the others, if they don’t carry the indemnification that the law provides them, they won’t provide this information. We don’t know the answer, but it is obviously a high-risk proposition,” Warner explained.

Warner also cautioned that the administration will not be able to open any new “orders” under the program, even if current operations remain in practice. That means the government would not be able to introduce new surveillance measures ahead of upcoming high-profile public events in the U.S., including the World Cup and the Great American State Fair. And, the hold comes in the midst of the Trump administration’s war with Iran.

Sen. John Kennedy (R-Louisiana) emphasized Warner’s point, saying that a lapse in the program won’t end American surveillance.

“In terms of our intelligence gathering, we’ve got 1000s of certifications that have already been approved that last a long time, so those will all continue,” Kennedy said. “We won’t be able to do new certifications, but it’s not like that will be the end of our ability to surveil foreign terrorists.”

Rep. Greg Steube (R-Florida), who serves on the House Intelligence Committee, told NOTUS that the panel has reviewed information through FISA that is “very important.” He said he’s open to any options Trump could use to extend the program, including by an executive order –– an idea that’s been floated by a number of House Republicans.

“My guess is the agencies will use that court as the authority to continue to collect until Congress can get their act together,” Steube said. “If I was an agency head, I would be relying upon that and saying we’re gonna continue to do it.”

But other lawmakers continued to sound the alarm around high-profile events. Senate Majority Whip John Barrasso (R-Wyoming) told reporters that the public nature of the law expiring presents a significant security challenge.

“With the soccer tournament coming up, a lot of people coming from around the world, there’s heightened alert,” Barrasso said. “Plus the fact that the deadline date is today, that alerts our enemies that they can come at us. They’re always probing, and we know that they’re looking for ways to get in.”

At least one House moderate was critical of the president’s actions.

“This is America weakening itself unilaterally, making ourselves more vulnerable because of hyper partisanship,” Rep. Don Bacon (R-Nebraska) told NOTUS. “The president made an error by submitting Pulte, because that’s given a low-hanging fruit of an excuse for the Democrats to oppose.”

Rep. Mark Amodei (R-Nevada), who chairs the House appropriations subcommittee on Homeland Security, also said that any lapse in a surveillance program constitutes a huge disruption for national security.

“If you think it’s an important tool, then it’s like, well, it’s not like a light switch –– ‘oh, we’re turning that on, we’re turning it off,’” Amodei said. “It needs to be kind of like the power supply: constant and reliable for their operations.”

The path to full reauthorization in Congress also remains murky. House Democratic leadership contends that little changes in their opposition to the FISA extension as long as Pulte serves as the national intelligence director –– even in a short-term capacity. Warner said Senate Democrats have the same stance.

“While I am glad to see the president finally come to his senses, before the Senate can take up a FISA extension there needs to be a clear guarantee that Mr. Pulte will not serve as acting DNI,” Warner said in a statement Thursday.

Senate Majority Leader John Thune told reporters Thursday that Republican leadership will try to move on Clayton’s nomination as quickly as possible in order to get Section 702 across the finish line. Pulte is set to take over the post on June 19, and the Senate Intelligence committee will hold its confirmation hearing for Clayton on June 16.

“I don’t know what realistic is, but we’re going to probe the limits of it,” Thune said.