Congress has just days left to extend a high-profile warrantless surveillance program before it expires Friday.
But the law — Section 702 of the Foreign Intelligence Surveillance Act, or FISA — faces opposition on both sides of the aisle, with some lawmakers criticizing it as surveillance overreach and others citing concerns over President Donald Trump's choice for acting national intelligence director, Bill Pulte.
On Monday, Rep. Don Bacon, R-Neb., contended on social media that Trump could “help” prevent FISA from lapsing by canceling plans for Pulte to succeed outgoing director Tulsi Gabbard, who is stepping down June 30.
“FISA gives us over 50% of our most sensitive intelligence and has enabled the U.S. to stop multiple terrorist attacks,” Bacon wrote on X. “Letting FISA lapse would reflect a nation paralyzed by hyper-partisanship and dysfunction.”
The law allows intelligence agencies to collect and analyze communications of foreign targets located outside of the U.S. without warrants, including their correspondence and calls with Americans. Privacy advocates have been pushing for more guardrails, including a warrant requirement before records of Americans could be reviewed.
Meanwhile, the intelligence court approved a yearlong certification in March, meaning the surveillance program could continue into 2027 even without congressional approval, according to remarks by the top Democrat on the Senate Judiciary Committee, Sen. Dick Durbin, D-Ill., earlier this year.
On Friday, a procedural motion that would have set up a final vote in the Senate this week failed 47-52 vote — far short of the 60 approvals needed for it to move forward. All Democrats except for Sen. John Fetterman, D-Pa., as well as seven Republicans, rejected the three-year extension.
Senate Majority Leader John Thune, R-S.D., said following the vote that the upper chamber would "take another run at” passing the extension, but noted that he didn’t think Pulte’s nomination “ought to derail something that's this important."
Democrats have threatened to block the FISA renewal unless the president withdraws his selection of Pulte, who also serves as director of the Federal Housing Finance Agency, to be the acting director of national intelligence.
When asked for comment, White House spokesperson Davis Ingle shared a statement that read, "Bill Pulte is a great selection and he will do a great job on behalf of the American people. Holding FISA hostage puts America’s national security at risk and it is shameful that some Democrats are threatening to put partisan politics ahead of the safety of the American people.”
On Thursday, Trump said Pulte would not be his “permanent” choice for the post, which requires Senate confirmation. The Federal Vacancies Reform Act allows appointees to temporarily serve for up to 210 days in vacant positions.
Several GOP lawmakers have expressed skepticism over Pulte’s credentials and whether he would have support in the upper chamber.
“I don’t think he has a prayer of being confirmed by the U.S. Senate,” Sen. Thom Tillis, R-N.C., said in an interview with CNBC last week.
Another lawmaker acknowledged the fallout of Pulte's appointment by Trump on the surveillance law debate.
“I don’t think he thinks about the impact on us and the timing,” Sen. Lisa Murkowski, R-Alaska, told Politico. “Which is unfortunate because it really has had an impact. Quite honestly, I’m worried about what we’re going to do on FISA.”
A group of Senate Democrats — including the ranking member on the Intelligence Committee, Sen. Mark Warner, D-Va. — had been working with their GOP colleagues on revisions to the law and had been expected to help move the measure forward, but backed out of supporting the extension last week.
“It is a controversial program," Warner said Sunday on CNN. "I think it's a necessary program, and we've worked on even further reforms. But the idea that we're going to allow Mr. Pulte to be potentially in charge of how this tool is used or manipulated, that's going to be a very uphill path to convince Democrats, and this was a self-inflicted harm."
“I'm not sure (Trump) really wants renewal of 702 because why would he throw a live hand grenade with this kind of controversial pick 10 days before its renewal date?” Warner added.
The Virginia Democrat declined to say if he would refuse to vote for a FISA renewal but said, “Let's see what happens this week, but I don't see any path to convincing enough Democrats.”
Separately, GOP lawmakers are pushing for preparations to be made should the surveillance bill not be extended.
In a letter to Secretary of State Marco Rubio, who also currently serves as the national security adviser, Sen. Tom Cotton, R-Ark., and Sen. Chuck Grassley, R-Iowa, warned that the Trump administration should “plan for a potential significant gap in foreign intelligence collection.”
The GOP lawmakers, who head the Senate Intelligence and Judiciary committees, respectively, urged officials to identify all intelligence targets for whom they would lose access to information if FISA expired, find “alternative lawful and constitutional intelligence-collection methods” and “if necessary, draft a new Executive Order to remedy the gap” in intelligence.
Gabbard, Defense Secretary Pete Hegseth, acting Attorney General Todd Blanche and other intelligence and law enforcement heads were copied on the letter.
This story has been updated with a response from the White House.