Reporter's Notebook: Lawmakers scramble as FISA fight comes at the worst possible time

There’s the World Cup. America’s 250th birthday. And the conflict with Iran.

It’s all a nightmare national security hat trick.

"It’s the highest we’ve ever seen," said Homeland Security Secretary Markwayne Mullin on Fox News Sunday about the terrorism threat level. "When I say we arrest terrorists every single week, I’m not exaggerating. Those aren’t the individuals that are coming across our border, those are individuals that are still inside this country."

But lawmakers are scared now that the nation’s premier anti-terrorism tool — called FISA Section 702 — expired over the weekend.

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"I hope and pray to God that nothing happens in this country where an American is killed," said Sen. Bernie Moreno, R-Ohio.

"We want to prevent the next 9/11 from happening," said Sen. Roger Marshall, R-Kan., on Fox.

"This program goes dark at a time when there are literally hundreds of thousands of people coming to this country for the World Cup," said Senate Majority Leader John Thune, R-S.D.

Well, not quite.

"FISA is operative until next March. That's the legislation," said Sen. Jack Reed, D-R.I., the top Democrat on the Senate Armed Services Committee.

Confused? You’re not the only one. Let me explain.

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Legal authority sanctioned by Congress for this powerful intelligence-gathering weapon to foil terrorism expired at 11:59:59 p.m. ET Friday night. If nearly any other statute other than FISA Section 702 expired, the government couldn’t continue to rely on the program.

"It's a very inopportune time to allow the authorizing statute for 702 to lapse," conceded George Croner, a former National Security Agency counsel. "It has proven to be the most useful by far of any of the intelligence programs that the community has available to it."

That’s why there’s worry about unprecedented vulnerabilities with the program expiring. Especially right now.

"I think that it's completely irresponsible to have FISA go dark at the beginning of the World Cup," said Rep. Carlos Gimenez, R-Fla., on FOX Business.

A bipartisan coalition tanked an emergency FISA extension in both bodies of Congress last week.

"It should have been voted down," said Rep. Jason Crow, D-Colo. "And I don't say that lightly."

"We don't have the guts to fix it. And I'm tired of hearing people are going to die," said Rep. Tim Burchett, R-Tenn., scoffing at potential consequences from a program which ran its statutory course.

The House rejected a three-week patch to paper over an imminent lapse in the program on Thursday.

"Anybody who votes no on this bill is voting to undermine America's national security," said House Majority Leader Steve Scalise, R-La.

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But the GOP House majority failed to muster even 200 yeas for the bill. Nineteen Republicans bolted. They have privacy concerns and raised questions about illegal searches and seizures.

"The Fourth Amendment is not a suggestion. We have to have a warrant," said Rep. Keith Self, R-Texas.

Still, Republican leaders claimed that it was Democratic resistance which put the country at risk.

"(Democrats) are willing to jeopardize the safety and the security of the American people to make a cheap political point," said House Speaker Mike Johnson, R-La.

But there was a reason Democrats balked.

Congress punted renewing FISA Section 702 on multiple occasions over the past few months, repeatedly approving stopgap measures. Finally, Democrats and Republicans painstakingly negotiated a compromise which would install reforms. But Democrats withdrew their support for the deal once President Trump announced that housing czar Bill Pulte would take over on a temporary basis for Director of National Intelligence Tulsi Gabbard.

Democrats noted that Pulte lacked any national security or intelligence experience. Moreover, they believed he could weaponize intelligence programs like Section 702 against political opponents.

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Ironically, both sides thought this was ironed out before Memorial Day. But Senate Democrats pulled their votes to advance the FISA measure in a pre-dawn vote late last month.

Still, there’s concern about the consequences of not having FISA Section 702 fully in place.

"Do Democrats not sleep at night if, God forbid, there's something that happens with FISA turned off?" yours truly asked House Minority Leader Hakeem Jeffries, D-N.Y.

"Donald Trump should lose sleep," countered Jeffries. "Because Donald Trump decided he wants to elevate Bill Pulte, who is nothing more than a malignant political hack."

Here’s how the program works:

FISA siphons the calls, emails and texts of foreign intelligence targets that the U.S. tracks. A special, secret court oversees FISA. But it ruled that the intelligence services can still track suspect communications through well into 2026 – despite a break in the law.

"Data can still be collected for a year after it expires. So I don't think it's as dire as some think it is," said Sen. Cynthia Lummis, R-Wyo.

She’s not the only one.

"(FISA) will not lapse. I try to make this clear. The statute makes it clear that the authorities of FISA are going to be positive and enforceable for the remainder of this year. We think, until March of next year," said Senate Minority Whip Dick Durbin, D-Ill.

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However, it’s unclear if telecommunications companies will provide digital breadcrumbs to the government, lacking a Congressional safeguard.

"That is a gray area and it's one of the things that we're going to have to work through," said Jeffries.

Croner, the former NSA counsel, says people shouldn’t worry about the government lacking a FISA Section 702 law. But he offered a caveat.

"The carriers are going to become, in my view, increasingly uncomfortable with not having statutory protection for their part in 702 collection," said Croner.

When reporting on Congress, you’re only as good as your sources. And the same can be said in spy craft. The government’s digital spooks can’t track possible terrorists if the telecom data vanishes.

It was believed a path emerged to re-up FISA late last week. Just as the Senate departed for the week, the President nominated Jay Clayton as the permanent DNI. Clayton’s confirmation hearing is Wednesday before the Senate Intelligence Committee. It’s possible the Senate could step on the gas and try to confirm Clayton on the floor as early as this week. That could clear the path to reauthorize FISA.

"The only factor was Bill Pulte," said Sen. Kevin Cramer, R-N.D., about Democrats dropping their support for a FISA renewal. "And that factor is now, I think, set on the sideline. It should pave the way."

Republicans will likely vote to confirm Clayton. But Democrats aren’t so sure.

"We have to look very clearly at Jay Clayton," said Reed. "He's a very accomplished lawyer. But the statute requires someone taking this job to have significant national security experience. That has to be measured. I don't think he does."

So the Senate may confirm Clayton. But does that guarantee passage of FISA? Not necessarily. President Trump altered the playing field again over the weekend.

He’s now demanding that lawmakers connect an extension of FISA Section 702 to the SAVE America Act. That bill is the touchstone of the President’s 2026 agenda. It requires proof of citizenship to vote. While popular among Republicans, the SAVE America Act didn’t even command a simple majority on two test votes in the Senate this spring.

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A mix of Democrats and Republicans are necessary to pass FISA. There’s too much internal GOP opposition. Latching the SAVE America Act to FISA Section 702 is a poison pill to Democrats. The measure would never command 60 votes and break a filibuster in the Senate.

So where does this land?

As Croner suggests, things are likely OK for now, despite the threats. However, a long statuary breach for FISA isn’t good.

You’re only as good as your sources in journalism. And perhaps to prevent a terrorist attack, you’re only as good as the law.