Trump concession breathes new life into stalled FISA spy powers deal

The flatlined bid to reauthorize the nation’s controversial spying powers may have a pulse again after President Donald Trump made a key concession to Democrats. 

Congress was on its way to reauthorizing the Foreign Intelligence Surveillance Act (FISA), which is set to expire Friday, but that momentum was halted when Trump tapped his current director of the Federal Housing Finance Agency, Bill Pulte, to serve as a temporary chief for the nation’s spy agencies. 

Pulte, who is set to take over the Office of the Director of National Intelligence (ODNI) on June 19, has proven the prime sticking point in a process that has already been marred by disagreements over FISA’s controversial Section 702. Critics have panned him as having no experience in a role that will require him to oversee the nation’s 18 intelligence agencies.

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"This is not a problem between Senate Democrats and Senate Republicans, this was the administration throwing a live hand grenade into a critical reauthorization 10 days out," Sen. Mark Warner, D-Va., said.

Warner, the top Democrat on the Senate Intelligence Committee, and Senate Intelligence Committee chair Tom Cotton, R-Ark., produced a compromise, three-year reauthorization with reforms to Section 702 that likely would have advanced absent Trump’s decision to tap Pulte. 

Given the logjam, Trump on Wednesday announced that he was actively seeking a replacement to lead ODNI and requested that Congress produce a short-term extension to keep the program running in the meantime.

"I would say this, [Pulte is] going to be there for a short while, while we pick somebody else," Trump told reporters in the Oval Office. "We're interviewing five different people. They're all very good, very different, and we'll put somebody there."

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That move could help some Senate Democrats get over the hump. 

Sen. Tim Kaine, D-Va., said that he believed that at least knowing that Pulte would be out could be enough to dislodge some Democrats to support an extension. 

"I think knowing who the DNI will be, if it's somebody that people have confidence in, that makes the FISA question a lot easier," Kaine said.

For others, Trump’s ambiguity on how long Pulte will stick around remains a troubling prospect.

"That's a problem," Sen. Angus King, I-Maine, said. "If Mr. Pulte is gonna be there for an indefinite period, then I can’t vote for an extension. If there's some timeline, measurable, defined, then I would consider it."

Lawmakers are currently mulling a possible three-week extension to the program, which has given conservatives and Democrats heartburn.

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It’s one of the rare horseshoe issues in the Capitol where privacy hawks on both sides of the aisle want steep reforms, particularly for warrant requirements to prevent Americans from getting ensnared in information collected on foreigners under Section 702. 

That reality means that some Republicans and Democrats wouldn’t vote for the compromise deal anyway — six Republicans joined nearly every Democrat to block a procedural move to reauthorize the program last week. 

"Why don't we surveil the foreigners and not surveil Americans? It’s a new concept," Sen. Rick Scott, R-Fla., said.

That means that Senate Majority Leader John Thune, R-S.D., will need all the help from Democrats that he can get. 

"We need Democrat votes," Thune said. "And, as I've said before, I think irrespective of what you think about Bill Pulte, providing the reforms that are included in the 702 reauthorization is a safeguard, regardless of who's in that job, or which party is in power here." 

But others contend that the Friday deadline isn’t the hard end of the program.

Senate Minority Whip Dick Durbin, D-Ill., said on the Senate floor that the case to rush a reauthorization to the floor by the end of the week "is not true." 

"Existing law allows Section 702 collection to continue under an order from the FISA court for another year, even without congressional reauthorization," Durbin said. "Congress can and must take the time to get this right."