Congress Should Nix Section 702 Spying for Good

According to Stephen Miller, the Deputy White House Chief of Staff, on X, “A libertarian demand to make Sec War [Secretary of War Pete Hegseth] get approval from liberal DC judges (the ones who targeted Trump) is madness.” He directed the post at seven Republican senators who, along with Democrats, opposed renewing the warrantless surveillance authority under Section 702 of the Foreign Intelligence Surveillance Act (FISA). Miller also flung more ad hominem attacks on those opposing Section 702’s renewal as promoting “Marxism” and countermanding “patriotic reform.” That authority, which allows the government to collect communications of foreigners abroad while incidentally acquiring Americans’ texts, emails, phone calls, and other electronic communications, expired after Congress failed to approve another extension.

The political turbulence over Section 702 intensified after Trump’s move to appoint Bill Pulte for Director of National Intelligence (DNI). Lawmakers from both parties objected over concerns about Pulte’s qualifications and his willingness to weaponize government information. Democrats made the point that no short-term extension of the program would receive their party’s support while Pulte was in play, while several Republicans echoed the concern. 

During the jostling, there was a risk that opponents of Pulte could accept a political bargain: allowing Section 702 to continue in exchange for withdrawing his nomination. Such a trade would have preserved the underlying surveillance authority while leaving the deeper constitutional questions unresolved.

The “reformed” Section 702 on which Congress was considering was worse than the already blatantly unconstitutional current version of Section 702, which allows spying without the required Fourth Amendment warrant from an independent judge (no exemption to this requirement for “national security” appears in that constitutional amendment). According to the Brennan Center, the “reformed” Section 702 not only has no warrant requirement nor restrictions on government back door searches of vast portions of its database, but also makes it easier to use such unconstitutional Section 702-gathered information in court.

Fortunately, it appears the lawmakers won’t be forced to choose between two bad options. The House recently rejected a last-minute effort to extend Section 702 until July 2. The measure failed despite House Speaker Mike Johnson’s effort to fast-track the renewal. As it stands, Section 702 has expired. 

As a result, Trump has announced the nomination of federal prosecutor Jay Clayton to the DNI role, rather than Pulte. 

Defenders of Section 702 have warned that its expiration would place the country in “uncharted territory.” Rick Crawford, chairman of the Intelligence Committee, has used that phrase to describe the consequences of allowing the authority to lapse. Of course, previously collected data will remain available, meaning that intelligence will not end overnight. But the period before Section 702 and before similar forms of modern electronic surveillance was not uncharted territory for the American constitutional system. For most of the nation’s history, the government operated without a broad warrantless domestic communications surveillance authority of this kind. Moreover, unsubstantiated claims of intelligence do not ease the countless constitutional concerns.

Whether Clayton is a good pick remains to be seen. Trump has already begun muddying the waters on his confirmation, hoping to use the renewal discussions to garner support for the SAVE America Act, which would change voter registration rules. However, unlike Pulte, Clayton does have federal law enforcement experience, though his nomination deserves its own scrutiny. 

Congress should use this moment to do more than simply pass another temporary extension of a surveillance program that has repeatedly returned for renewal. The expiration of Section 702 provides an opportunity to appreciate the constitutional protections that have governed the country for generations.

Hope springs eternal.