President Trump does not plan to use an executive order to extend the government’s power to spy on foreign targets, a legal authority that Congress allowed to expire Friday, an administration official told The Washington Times.
The official said an executive order would have “serious limitations” and could not fully replace the law.
The spy authority, known as Section 702 of the Foreign Intelligence Surveillance Act, is a 2008 law authorizing the government to monitor the communications of foreigners abroad without a warrant.
President Trump said Thursday that he might extend Section 702 through an executive order. The House, in a 218-198 vote on Thursday, rejected an extension of Section 702 through July 2.
“Congress wants me to do it,” Mr. Trump said. “Let’s see what happens. It’s very important for our military.”
However, the official said the executive order could not provide 702 certifications, which are submitted by the attorney general and the director of national intelligence to allow surveillance of non-U.S. persons located abroad.
“An executive order cannot address the intelligence gaps that a lapse would potentially create and cannot grant the government authority to issue new certifications,” the official said.
The order would likely spur a stream of legal challenges. That’s because Section 702 is a federal statute enacted by Congress that imposes a legal obligation on telecommunications companies to comply with data demands. An executive order would also only apply to the federal government and cannot compel data collection from private companies.
Telecom companies could refuse new requests from the government because, without a statute such as 702, they would lose their legal immunity and be exposed to lawsuits.
“There is also nothing that can be done via an executive order to address the judicial challenges that would arise from a lapse in 702. Congress must take legislative action to prevent the risks that would arise from a lapse in 702,” the official said.
When Section 702 nearly expired in 2024, some service providers began refusing to comply with existing legal directives before it officially lapsed. While the Biden administration considered filing a motion with the FISA Court to compel telcom companies to comply, that process often takes weeks or months.
Mr. Trump said Sunday that he would not support renewing Section 702 unless it includes the SAVE America Act, a sweeping voter ID bill the president supports. He has vowed not to sign any more legislation until the SAVE America Act is passed.
“I’m against FISA if it doesn’t come with The Save America Act (Full version!) firmly attached to it,” Mr. Trump wrote on Truth Social.
Homeland Security Secretary Markwayne Mullin said Sunday that the lapse of 702 has made it more difficult to keep Americans safe ahead of several high-profile events, including the World Cup and America’s 250th anniversary celebrations.
Mr. Mullin said Section 702 has expired at a time when America’s threat level is “the highest it’s ever been,” putting the nation at risk.
“There’s ways we can get to what we need to do, but it makes it significantly more difficult,” Mr. Mullin told “Fox News Sunday.” “We can cut through a lot of the bureaucracy with 702 and go after the terrorists that are trying to attack us every single day. It’s not impossible; it’s just, instead of something that we can get done in maybe hours, this may take days.”
Democrats have opposed extending Section 702 since Mr. Trump announced that he selected Bill Pulte, the head of the Federal Housing and Finance Agency, to serve as acting director of national intelligence. In addition to his lack of national security experience, Democrats also claimed that he targeted some of Mr. Trump’s political foes with accusations of mortgage fraud.
Mr. Trump announced on Friday that he would nominate Jay Clayton, the U.S. attorney for Manhattan, for the position, backing away from Mr. Pulte. However, Mr. Pulte is still slated to serve as acting director until Mr. Clayton can be confirmed and Democrats said they don’t want to give Mr. Pulte any access to 702 power.
Sen. Jack Reed of Rhode Island, the highest-ranking Democrat on the Senate Armed Services Committee, said Mr. Clayton may face some difficulty winning approval.
“We have to look very clearly at Jay Clayton. He’s a very accomplished lawyer but the statute requires someone taking this job to have significant national security experience,” Mr. Reed told “Fox News Sunday.” “I don’t think he does.”
“We’re looking for someone who can step in as they have done in the past and have an immediate sense of the situation overseas, understanding the different cultures of these intelligence agencies and that’s not the case here,” Mr. Reed continued.
Please read our comment policy before commenting.