Spy powers lapse amid DNI standoff, but could return in days

Congress allowed a set of key surveillance powers to expire this week amid a standoff between the White House and lawmakers over the president’s pick to lead the Office of the Director of National Intelligence (ODNI), but those powers could return in a matter of mere days.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) allows for the warrantless surveillance of foreigners abroad. The provision has attracted criticism over the possibility that intelligence agencies may gather information on Americans in the process. 

The House this week failed to temporarily extend Section 702, which expired on Friday evening, after nearly 20 Republicans voted with Democrats to shut down a bill that would have prevented a lapse. The spy powers technically lapsed in 2024 due to passage of a renewal just after the midnight deadline. Earlier this year, Congress approved a short-term extension amid debate on reforming the provision.

While many Republicans have long expressed concerns over the provision’s possible enabling of intelligence community overreach, the hesitance to extend Section 702 in this instance stemmed more from President Donald Trump’s choice of acting DNI.

Trump tapped Federal Housing Finance Agency (FHSA) head Bill Pulte to replace the outgoing Tulsi Gabbard in an acting capacity this month. Pulte remained in his FHSA post and Trump has indicated that he picked Pulte to make sweeping cuts to the ODNI staff.

Pulte had no prior experience in intelligence roles and his past involvement in criminal referrals against Trump opponents sparked fears among Democrats that he would use the ODNI to politically persecute Trump’s foes.

The expiration of Section 702 offered Pulte’s critics some leverage over Trump, who has endorsed the extension of those spy powers amid the Iran war. The Thursday House vote saw the lower chamber vote against an extension 218-198, before leaving for the weekend.

But lawmakers plan to vote again on an extension next week, giving them an opportunity to keep the lapse confined to a small window. The failure of the Thursday vote, however, appears to have prompted Trump to address the ODNI issue.

Swapping out nominees

Shortly after the House voted down the FISA extension, Trump announced his selection of U.S. Attorney for the Southern District of New York Jay Clayton to serve as DNI in a permanent capacity. Clayton previously served as chairman of the U.S. Securities and Exchange Commission (SEC) during Trump’s first term.

"Few people anywhere in the Legal Community are respected at the level of Jay. I encourage the United States Senate to confirm Jay as soon as possible,” Trump said.

Clayton’s nomination appears to have calmed some Democratic lawmakers, including Senate Intelligence Committee Ranking Member Sen. Mark Warner, D-Va., who called him a “capable public servant.” But Warner still wanted assurances that Pulte would not take up the DNI post, even in the interim.

“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,” he added. “Either Director Gabbard must remain in place or the administration must designate the Senate-confirmed Principal Deputy DNI as the acting head through any transition.”

Warner and Senate Majority Leader John Thune also both highlighted that Trump could have announced Clayton’s nomination earlier and likely prevented a lapse of Section 702 in so doing.

As always, the timing around here matters. It would have been nice if we had had this a couple of days earlier,” Thune said, according to Punchbowl News. “But you play the hand you’re dealt. And we’ll try to figure out the best way to process this [nomination] quickly.”

Hearing scheduled for Wednesday

Clayton is set to face a hearing of the Senate Intelligence Committee on Wednesday, while Pulte is set to take over as acting DNI on Friday, meaning it is extremely unlikely that the Senate would confirm Clayton quickly enough to prevent Pulte from holding the role, even if briefly.

Whether a dramatically reduced interim stint may be enough to satisfy lawmakers remains unclear, but Warner’s insistence that the Senate not advance FISA Section 702 without assurances from the administration, as well as the House’s departure, seems to indicate that those spy powers will languish for at least a few more days.

But the Pulte matter is still only part of the road ahead for Section 702. Privacy hawks in both chambers have regularly criticized the provision, which has seen the intelligence community improperly access information on Americans hundreds of thousands of times.

Some lawmakers have sought to amend the provision to include a requirement, though that suggestion has faced strong opposition from Senate leaders. Trump, for his part, has endorsed a clean extension of the spy powers.

Ben Whedon is the Chief Political Correspondent for Just the News. Follow him on X.