Congress is leaving a key surveillance tool dark through the election, a development that is alarming members concerned about new threats stemming from the Iran war and other security issues in the coming months.
The House is planning to adjourn Wednesday until after Election Day, meaning that even if the Senate were to take up a reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA), the spy power would remain idle until members return.
Senate Majority Leader John Thune on Tuesday rattled off the to-do list for the three-week session before the chamber breaks for the election sprint, with reupping FISA absent, as Republicans prioritize bills related to overhauling college sports and permitting reform.
The lack of movement is upsetting members who believe it was high time it got done.
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“I don’t like FISA being dark an hour,” Sen. James Lankford (R-Oklahoma), a member of the Intelligence Committee, told The Washington Sun. He added that the hard part is “you don’t know what you don’t know. That’s this constant thing that hangs out there all the time. That’s a bad spot for us to be [in] as a country.”
“Going through the 25th anniversary of 9/11, the lesson that we were supposed to learn there is it’s a lot better to be able to find out what’s going to happen before it happens than after,” he added.
Democrats blocked the authority’s reauthorization in June over their concerns about then-acting Director of National Intelligence Bill Pulte but expressed openness to renewing the program after confirming Jay Clayton to the post in August.
Pulte was criticized by lawmakers on both sides of the aisle for his lack of experience and his immediate moves to slash jobs in the intelligence community.
Still, there’s been little rush to renew FISA since the telecommunications companies covered by the law are by and large continuing to cooperate with federal law enforcement agencies. But some lawmakers believe a promise from those companies is not enough to keep the program operating indefinitely without congressional action.
“Fortunately, the telecom companies are continuing to cooperate based on foreign intelligence surveillance court certifications, but that’s going to run out,” said Sen. John Cornyn (R-Texas), an Intelligence Committee member.
Cornyn also pressed FBI Director Kash Patel about FISA at a hearing on Tuesday, noting that 60% of the president’s daily brief comes from information collected under the authority
“I think we should all be concerned,” Cornyn added.
That worry was shared by Democrats on the panel. Sen. Mark Kelly (D-Arizona) told The Sun he was surprised that the Senate had not yet voted to reauthorize the program since Clayton was installed in early August.
“It’s helpful [the telecom] companies are complying. But there’s always risk until we get the legislation done,” he said.
Lawmakers have debated the issue for months, with critics from both parties calling for more guardrails around the program, which collects data on communications overseas by foreigners who could pose a threat to the U.S. The debate has been particularly contentious in the House –– both chambers earlier in the year passed a temporary extension in order to continue negotiating over provisions that would bolster the law’s privacy protections.
“I think the House is running the least successful legislative operation in House history, and it’s going to have a lot of different costs,” Sen. Sheldon Whitehouse (D-Rhode Island) said, adding about the surveillance program, “and that’s one of them.”
Some conservatives and libertarian-leaning members routinely argue that communications by Americans get swept up as part of the process, despite provisions in the law limiting who the intelligence community can monitor.
The program was recertified in March by the Foreign Intelligence Surveillance Court, which allows FISA to continue collecting information under the law for those foreign individuals they already began monitoring. Because the program’s congressional authorization has lapsed, the Trump administration has not been able to open new “orders” under the program.
Intelligence officials have indicated to lawmakers that a FISA reauthorization needs to happen by Thanksgiving in order to avoid a lapse ahead of that March 2027 deadline, a source familiar told The Sun.
“In my view, there’s still a sense of urgency,” Thune told reporters earlier in the week.
Despite the tumult that surrounded his nomination, Democrats have indicated that there are winds shifting with Clayton finally in office.
Sen. Mark Warner (D-Virginia), the ranking member on the Intelligence panel, noted that Clayton has been more responsive to committee queries lately, a sign he believes could help move a bipartisan bill.
“Even though I didn’t vote for Jay Clayton, I think the approach he’s taken — he’s communicating better with committees. He’s starting to report some of the things that we’ve been looking for. In my mind, he’s given me more confidence,” Warner told The Sun.
Warner added the current state of play isn’t ideal for the long term so Congress needs to act.
“The challenge that he kind of acknowledges is the fact that the [telecommunications companies] are still cooperating is a very good sign, but there’s no guarantee that will go forever.”
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