Foreign surveillance law set to expire as Congress leaves town after rejecting extensions

Congress left Washington this week without renewing a foreign surveillance law that expires Friday, ensuring America’s spy network will lose some of its powers used to thwart terrorist plots.

House and Senate Republicans made separate attempts on Thursday to pass three-week extensions of the law that Democrats and a minority of Republican lawmakers blocked.

“I pray that we do not have a serious calamity on our shores over the next few weeks,” House Speaker Mike Johnson said, condemning Democrats’ “shameful” and “dangerous” behavior.

Democrats are blocking both short- and long-term renewals of Section 702 of the Foreign Intelligence Surveillance Act to pressure President Trump to drop his pick to temporarily lead the U.S. intelligence community.

Mr. Trump called that “extortion” and said he is moving forward with his appointment of Federal Housing Finance Agency director William J. Pulte to serve as acting director of national intelligence, effective June 19.

Just after lawmakers left Washington on Thursday, the president announced his nominee to permanently replace the director of national intelligence, Tulsi Gabbard, who is leaving the administration to help her husband through cancer treatment.

In a social media post, Mr. Trump asked the Senate to quickly confirm Jay Clayton, U.S. attorney for the Southern District of New York and former Securities and Exchange Commission chairman, as DNI.

Senate Minority Leader Charles E. Schumer, New York Democrat, said the nomination alone will not dislodge Democrats’ opposition to extending FISA.

“Pulte’s got to be gone,” he said.

Democrats say Mr. Pulte lacks the national security experience needed to serve as DNI and fear the Trump loyalist would use confidential intelligence information to target the president’s enemies.

Many Republicans agree that Mr. Pulte lacks the experience to serve as DNI, but they said Democrats should not hold the FISA renewal hostage over that issue.

FISA Section 702 is a modern wiretapping law enacted in 2008 that allows the U.S. government to collect communications data of foreign targets without a warrant.

The phone logs, emails, text messages and other data collected under Section 702 is used to combat foreign terrorist plots against America.

“The reason we have not had a mass casualty event like 9/11 since that great tragedy is because we have this statute,” Mr. Johnson said.

Lewis Schiliro, former head of the FBI’s New York field office, said if Section 702 had existed in 2001, it could have prevented the terror attacks that destroyed the World Trade Center.

“The 9/11 Commission found many faults and the biggest was that intelligence agencies failed to connect the dots,” he said. “In part, those dots weren’t connected through a failure of being able to detect communication.”

Intelligence agencies used Section 702 in 2009 to stop al Qaeda-linked operatives from attacking the New York City subway system in what authorities called the most serious threat to the city since Sept. 11, 2001.

The foreign surveillance authority has also been used to thwart more recent terror plots, including an ISIS-inspired attack on a 2024 Taylor Swift concert in Austria.

The expiration of Section 702 on Friday comes the same day the FIFA World Cup begins in the U.S., with 11 cities hosting 78 of the 104 soccer tournament matches, and two days before Mr. Trump is set to host a UFC match at the White House on his 80th birthday.

Those are among a host of national security challenges the U.S. is dealing with as it prepares for weeks of large-scale celebrations surrounding America’s 250th anniversary of independence and remains engaged in on-and-off attacks against Iran.

Sen. Tom Cotton, Arkansas Republican and chairman of the Senate Select Committee on Intelligence, warned that the consequences of Section 702 going dark right now could be severe or even fatal.

Mr. Cotton tried Thursday to pass a bill extending FISA Section 702 through July 2 by unanimous consent, but Democrats objected.

The House, voting 198-218, also failed to pass the three-week extension.

All but seven Democrats voted in opposition, along with 19 Republicans who have concerns that the underlying law is used to spy on Americans whose data is inadvertently swept up in the foreign surveillance.

Mr. Pulte’s pending appointment as acting director blew up a bipartisan deal to reauthorize Section 702 for three years that top intelligence Democrats said they had gathered enough votes to help Republicans pass.

Virginia Sen. Mark Warner, the top Democrat on the Senate Intelligence Committee, said he worked with Republican lawmakers and Trump Cabinet officials to present the White House with several “off ramps” that would get that deal back on track.

Those options, which Mr. Trump rejected, included asking Ms. Gabbard to stay on for a few more weeks until a new director could be confirmed or appointing the second-in-command, principal deputy director of national intelligence Aaron Lukas, to serve as acting director.

Mr. Warner said his concern about Mr. Pulte “is less about 702 and more about his ability to get access to all of the information” from 18 different U.S. intelligence agencies that the director of national intelligence oversees.

He said that it is a dangerous proposition, given Mr. Pulte does not have a security clearance and “has not even been able to keep mortgage information confidential.”

Rep. Jim Himes of Connecticut, the top Democrat on the House Intelligence Committee, said there is a direct connection to FISA because Mr. Pulte, as director of national intelligence, would have access to the database of communications collected under Section 702.

“It’s a machine gun in the hand of a 5-year-old boy,” he said.

Mr. Himes said Section 702 is used “every single day” not only to stop terrorist attacks but to monitor cartel members trafficking fentanyl into the U.S.

“It is really essential, which is why even a couple of days of going dark would be a huge risk to national security,” he said. “And that’s what Donald Trump decided to do with the Bill Pulte idea.”

There are some legal questions around how much foreign surveillance must cease if the law expires.

Some say the Foreign Intelligence Surveillance Court’s annual certification of the intelligence community’s authority to collect foreign intelligence under Section 702 is sufficient legal authority to continue data collection.

That legal theory has never been tested in court, but likely will be now that the Section 702 statute is set to lapse, Mr. Himes said.

Mr. Warner said that communication providers who provide the raw data the government is surveilling advised Congress in 2024 that the FISC certification would not be sufficient for them to continue complying with Section 702.

“The Telcos and the Googles and the others, if they don’t carry the indemnification that the law provides them, they won’t provide this information,” he said. “It is obviously a high-risk proposition.”

• Jeff Mordock and Kerry Picket contributed to this report.