For years, centrist Democrats like Sen. Mark Warner of Virginia dismissed claims that a key National Security Agency surveillance program could be abused to spy on Americans.
Then President Donald Trump tapped Bill Pulte — an unqualified housing official accused of misusing sensitive databases to pursue the president’s political vendettas — to oversee the nation’s spy agencies. That got the centrist Democrats’ attention.
Warner, who serves as ranking member of the Select Committee on Intelligence, voted with every Senate Democrat except for Pennsylvania Sen. John Fetterman last week against advancing the renewal of the NSA program authorized by Section 702 of the Foreign Intelligence Surveillance Act, or FISA.
In the face of pushback from Democrats and some Republicans, Trump declined to back down on his choice. Instead, he said Tuesday that he was moving up the effective date of Pulte’s appointment to lead the Office of the Director of National Intelligence to June 19.
Sen. Ron Wyden, D-Ore., a longtime critic of Section 702, said that there’s unprecedented support for reforming the law.
“I have been doing this a while,” Wyden, who is on the Senate Select Committee on Intelligence, told The Intercept on Tuesday. “I am the longest serving member of SSCI in history, and I’ve never had this kind of bipartisan support.”
That doesn’t, however, mean that reform efforts hinge on Pulte’s political fate. Though the announcement narrowed the odds that the spying program will be renewed before it expires Friday, the fracas over Pulte has revealed a deep divide among Democrats that could keep the issue alive.
Centrists such as Warner would still vote to renew Section 702 if Pulte is sacked. Other Democrats, like Wyden, say that Pulte’s selection only exacerbated long-standing issues such as the lack of a warrant requirement for searching through the NSA’s data.
“Firing Pulte doesn’t fix the problem,” Wyden told reporters on Tuesday. “There have to be reforms.”
Section 702 has been the subject of an intense behind-the-scenes squabble since Congress passed a short-term, 45-day extension of the program in April.
The law allows the FBI and other agencies, including ODNI, to pore through Americans’ communications collected abroad without a warrant. Ostensibly, there are safeguards in place to prevent those agencies from targeting specific Americans — but courts have repeatedly found widespread violations of those rules.
For years, civil liberties advocates have sought to create a warrant requirement that would require the FBI and other agencies to go to a judge to read through Americans’ communications.
That idea has proven a nonstarter for defenders of Section 702 such as Warner, who argue that it would create insurmountable logistical obstacles for agents hoping to prevent terror attacks. Warner has long allied with Republicans to push back on the warrant proposal.
Compromise Flop
Since April, a bipartisan coalition of civil liberties supporters in Congress has managed to block a long-term reauthorization of Section 702. In recent weeks, Warner helped craft what was billed as a compromise proposal intended to win over enough of the critics to allow the passage of a long-term renewal of the law.
Then, Trump said on June 3 that he would appoint Pulte to serve as temporary director of national intelligence, to replace departing chief Tulsi Gabbard.
The announcement immediately soured centrist Democrats’ plans to help secure passage of a FISA extension. Pulte, whose net worth is at least $190 million, is a private equity firm founder who became a minor internet celebrity for giving away money on Twitter. Then Trump appointed him last year to serve as director of the Federal Housing Finance Agency and chair of mortgage giants Fannie Mae and Freddie Mac.
In those roles, Pulte helped launch housing fraud probes of Trump nemeses including Sen. Adam Schiff, D-Calif., and Democratic New York Attorney General Letitia James. He is being investigated by the Government Accountability Office for allegedly misusing confidential government databases for information on the president’s foes.
“There were already sensitive negotiations that were ongoing,” House Minority Leader Hakeem Jeffries, D-N.Y., told PBS NewsHour on Tuesday. “And then Donald Trump chose to elevate this partisan political hack, Bill Pulte, into this position of great sensitivity, effectively tossing a hand grenade in the midst of these negotiations as we approach the deadline to potentially renew surveillance authority.”
The compromise deal floated by Warner and others had never impressed privacy advocates. They said the changes it made to the law mostly layered on more layers of internal oversight, which would not stop a determined Trump flunky from abusing the NSA’s spying powers.
Even calling it a “deal” was misleading, said Elizabeth Goitein, senior director of the liberty and national security program at the Brennan Center for Justice, a nonprofit working on law and policy.
“The members who drafted this legislation, basically Trump allies plus Sen. Warner — all longtime opponents of 702 reform who are in complete alignment with each other on the fundamental points of debate — they were the members who drafted the legislation,” she said on a conference call Tuesday. “Members who support reform were shut out.”
Push and Pulte
While Warner and other Democratic supporters of the program voted against putting its renewal on the Senate agenda last week, that boiled down to a repudiation of Pulte instead of a sudden change of heart on the program.
“Pulte is the major stumbling block for people like myself and Mark Warner, who are generally supportive because of the importance of the program,” Sen. Angus King, an independent who caucuses with the Democrats, told The Intercept on Tuesday. “But we can’t in good conscience hand the keys to the country’s most significant car to a teenager.”
In the Republican caucus, a faction of members with libertarian tendencies support adding a warrant requirement. Some longtime supporters of the program, on the other hand, have dismissed the significance of Pulte’s appointment.
“He’s an interim guy, he’ll be there for weeks to a couple months, so I don’t understand why it’s a big issue anyway,” said Sen. James Lankford, R-Okla., who serves on the Intelligence Committee.
Privacy advocates are largely aghast at the appointment of Pulte, but they hope the expiration of Section 702 will create space for reform. They were heartened on Tuesday when Jeffries gave some of his strongest statements yet in support of overhauling the law.
“Donald Trump needs to withdraw his decision to elevate Bill Pulte,” Jeffries said on PBS. “That’s a starting point, not an ending point. And then we can see if we can responsibly get to a place where there are enough reforms built into the law to provide guardrails and protect the American people.”
Reformers have a smorgasbord of reform proposals. Wyden wants to create a warrant requirement not only for searches of NSA data, but also one for searches of sensitive information available on the open market, such as location tracking from commercial data brokers.
Wyden said he senses a rare opportunity, pointing to support from Republicans such as Sen. Mike Lee of Utah, and said, “Both of us have bipartisan bills with almost all of the provisions we’re talking about.”
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