{"id":12506,"date":"2026-06-11T23:20:48","date_gmt":"2026-06-11T23:20:48","guid":{"rendered":"https:\/\/sawahsolutions.com\/range\/house-vote-puts-section-702-on-brink-of-lapse-amid-fight-over-acting-spy-chief\/"},"modified":"2026-06-11T23:20:48","modified_gmt":"2026-06-11T23:20:48","slug":"house-vote-puts-section-702-on-brink-of-lapse-amid-fight-over-acting-spy-chief","status":"publish","type":"post","link":"https:\/\/sawahsolutions.com\/range\/house-vote-puts-section-702-on-brink-of-lapse-amid-fight-over-acting-spy-chief\/","title":{"rendered":"House vote puts Section 702 on brink of lapse amid fight over acting spy chief"},"content":{"rendered":"
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The House failed to approve an extension of a powerful spying authority on Thursday, putting it on course to statutorily lapse for the first time ever, even as President Donald Trump named his choice for a permanent spy chief in an apparent bid to defuse a fight with Congress.<\/p>\n

Hours after the 218-198 vote on Section 702 of the Foreign Intelligence Surveillance Act \u2014 which was fraught with bipartisan objections to Bill Pulte\u2019s appointment\u00a0as acting director of national intelligence \u2014\u00a0Trump said he would name Jay Clayton, the U.S. attorney for the Southern District of New York and former chairman of the Securities and Exchange Commission, to serve in the role permanently.<\/p>\n

Section 702 allows\u00a0the NSA and FBI to collect communications of foreigners abroad without a warrant, but the calls, texts and phone calls of Americans communicating with foreign targets can also be gathered, a caveat that has long raised constitutional concerns with privacy advocates.<\/p>\n

\u201cFew people anywhere in the Legal Community are respected at the level of Jay,\u201d Trump said in a Truth Social post Thursday. \u201cI encourage the United States Senate to confirm Jay as soon as possible.\u201d<\/p>\n

An impasse between the White House and Democrats has persisted, with Democrats warning that Pulte\u2019s role in mortgage-fraud reviews last year could foreshadow an abuse of intelligence tools to target the president\u2019s political opponents. Speaking to reporters in the Oval Office, Trump praised Clayton, and said Pulte would only be in his post \u201cfor a short while.\u201d\u00a0<\/p>\n

It\u2019s unclear how the appointment of Clayton, who like Pulte appears to lack national-intelligence experience, would affect the outcome of a 702 extension. After Thursday, the House is scheduled to recess until June 23, making it likely that the spying power would statutorily lapse\u00a0for at least a week.<\/p>\n

In a statement, Sen. Mark Warner, D-Va., the vice chairman of the Senate Intelligence Committee, said that he has \u201cknown and respected Jay Clayton for many years\u201d and believes \u201che is a capable public servant.\u201d<\/p>\n

But Warner said the timing of the announcement is suspicious, noting that \u201cthe president could have put forward a qualified nominee from the beginning. Instead, he waited until the House of Representatives went out of town, choosing a path that raises the risk of an entirely avoidable lapse in a critical national security tool.\u201d<\/p>\n

Warner added that the Senate would not\u00a0take up a FISA extension unless the administration guarantees that Pulte will not serve as acting DNI.\u00a0<\/p>\n

\u201cEither Director [Tulsi] Gabbard must remain in place or the administration must designate the Senate-confirmed Principal Deputy DNI as the acting head through any transition,\u201d he said, referring to Aaron Lukaas, a number-two official in that office.<\/p>\n

\u201cI have known Jay Clayton for decades and worked with him during his time as Chairman of the Securities Exchange Commission,\u201d Rep. Jim Himes, D-Conn., the top Democrat on the House Intelligence Committee, said in a statement.\u00a0<\/p>\n

\u201cDuring that time, he had the independence of mind and respect for the law that are necessary for any Director of National Intelligence,\u201d Himes said. \u201cI am hopeful that he will maintain that independence and provide apolitical high-quality intelligence to policymakers. The Senate should evaluate and confirm his nomination quickly. It is critical that we have a permanent DNI in place and move past the Bill Pulte disaster.\u201d<\/p>\n

Section 702 of FISA, enacted in 2008, codified parts of the once-secret Stellarwind surveillance program created under the Bush administration after the Sept. 11, 2001, attacks. In 2013, former NSA contractor Edward Snowden disclosed documents detailing how the authority was used, fueling a global debate over privacy and mass surveillance. The program is frequently used to track myriad national security threats.<\/p>\n

In March, the Trump administration notified Congress that the Foreign Intelligence Surveillance Court renewed certifications for the surveillance program, letting it operate for another year even amid an expiration. The certifications can cover broad categories of national security risks, such as nuclear weapons and cyber threats.<\/p>\n

But the split between the court\u2019s recertification process and Capitol Hill\u2019s role in extending the authority itself can create uncertainty for providers \u2014 such as AT&T and Microsoft \u2014 who are required to comply.<\/p>\n

A congressional aide, speaking on the condition of anonymity to communicate private discussions, said staff on the House intelligence committee are assessing how the spying authority can still be used in the event of a lapse. One concern, said the aide, is that data collected under the 702 authority could become increasingly out-of-date, and, therefore, be less effective.\u00a0<\/p>\n

Civil liberties advocates contend that Section 702 collection can continue even after a statutory lapse because of the way annual certifications are approved, and that other authorities remain available to support national security operations.<\/p>\n

A former intelligence official told Nextgov\/FCW<\/em> that, while collection activities would immediately, lawfully continue, firms may enter an \u201codd legal space\u201d where providers mandated to comply with the law could argue that they don\u2019t need to supply information. If access under 702 is curtailed, the intelligence community would likely explore ways to lean on other lawful collection authorities, the former official added.<\/p>\n

Glenn Gerstell, former general counsel at the NSA, echoed these points.\u00a0<\/p>\n

\u201cCompanies may say they are not 100% certain the authority still applies,\u201d he said in an interview.<\/p>\n

Two areas \u2014 terror attacks and cyberattacks \u2014 might present a higher risk with the authority having lapsed, Gerstell added, because they are fast-moving developments that often rely on single tips that intelligence analysts must run down.\u00a0<\/p>\n

\u201c702 is a great way to find and pursue that tip. It\u2019s a great tool for quickly getting an answer,\u201d he said. \u201cIf the FBI hears a ransomware attack has been made, and they believe it to be foreign-generated, they\u2019re going to want to move with lightning speed to figure out where it\u2019s coming from.\u201d<\/p>\n

\u201cIt feels like we\u2019re playing Russian roulette with national security,\u201d he later added.<\/p>\n

The NSA, CIA, FBI and the Office of the Director of National Intelligence \u2014 which all have authority to access Section 702 data \u2014 did not return requests for comment.\n\n<\/svg><\/p>\n<\/div>\n