The escalating feud between Donald Trump and US intelligence is now putting the top 2017 legislative priority of the intelligence agencies at risk.

At the end of the year, a broad legal authority permitting sweeping surveillance is set to expire. The National Security Agency considers the authority, known as Section 702 of the Foreign Intelligence Surveillance Act (Fisa), pivotal to fighting terrorism and stopping espionage. Civil libertarians consider the measure – the wellspring of the NSA’s Prism and “upstream” mass communications-data collection – unconstitutional.

The typical balance of power on Capitol Hill over surveillance is such that opponents of renewing Section 702 face strong political headwinds. The measure was reauthorized with minimal challenge in 2012.

Now the Republican chairman of the House intelligence committee has thrown reauthorization into question after extensive leaking about Trump and Russia that the president and his Capitol Hill allies have blamed on the US intelligence community.



Asked at a Tuesday press conference about the renewal of section 702 in light of ongoing leaks concerning Trump and Russia, Devin Nunes said, “I think it’s very problematic.”

He continued: “I’ve expressed this concern to the IC [intelligence community]. We have sent them many followup questions as it relates to intelligence that’s been collected. And we expect prompt answers. I think we also expect unprecedented answers from them of the information that we’re going to be asking for.”

First passed in 2008 to give legal cover to George W Bush-era warrantless surveillance, Section 702 permits the NSA to collect communications and associated data from targets it reasonably believes to be non-Americans overseas suspected of contact with a foreign power, even if they are in communication with Americans. The surveillance does not require a court order specifying its targets, purposes, or time frame; only the reapproval of the attorney general and the director of national intelligence.

NSA interception of communications between Russian officials or suspected operatives and Trump’s associates would not necessarily involve using Section 702. The NSA or FBI can acquire such communications under the terms of the original 1978 Fisa law. Because of a provision in the law about understanding the foreign-intelligence value of the intercepted communications, neither agency would necessarily have to purge references to Americans.

It is not only the NSA that values Section 702 ardently. The FBI director, James Comey, last year called the surveillance activities permitted by Section 702 “far more important” than the bulk domestic phone-records data program that Congress curtailed in 2015. The FBI is permitted to warrantlessly search through the NSA’s hoards of foreign-focused data with few restrictions.

Last week, as the House judiciary committee began hearings over the expiring provision, the Trump administration told Reuters it favors Section 702 reauthorization.

“We support the clean reauthorization and the administration believes it’s necessary to protect the security of the nation,” an anonymous official said.

Trump’s nominee for director of national intelligence, Dan Coats, testified that he agreed Section 702 is the “crown jewels” of US intelligence and the intelligence community “also sees it that way, the entire community”.

Throughout Barack Obama’s presidency and the Edward Snowden leaks, the vast majority of national-security-focused Republicans embraced the measure without reservation, with Republicans on the intelligence committee leading the way.



Nunes himself has been a full-throated defender of Section 702. Last year, he and colleague Lynn Westmoreland of Georgia took point in opposing a civil-libertarian effort to block it through an amendment to a defense-spending bill.

Citing the then recent case of Orlando nightclub murderer Omar Mateen, Nunes and Westmoreland circulated a letter to colleagues claiming the loss of 702 would deprive the intelligence community of “the authorities it needs to detect and stop terrorist attacks”.

But since then, Nunes has become a crucial ally to Trump. Nunes served on Trump’s transition team, a closeness that has raised questions about Nunes’ independence as his committee investigates Trump associates’ ties to Russia.

Nunes has ardently defended Trump’s first national security adviser, Michael Flynn, and implied without evidence that the intelligence agencies abused their surveillance powers in leaking accounts of Flynn’s December conversations with the Russian ambassador, Sergey Kislyak, that proved to be his downfall.

Trump has blamed the intelligence agencies for the leaks, in particular the FBI and NSA, and his administration has suggested that career intelligence officials are in league with former Obama officials. He has recently taken to claiming, baselessly, that Obama ordered Trump to be surveilled, an act that would be illegal if true.

“There is no evidence to support that claim” of Obama ordering Trump to be wiretapped, a US official told the Guardian over the weekend.

But Nunes has given the accusation credence. His committee on 1 March added the “possible leaks of classified information” that Trump wants investigated to its inquiry on Russian measures to interfere with the 2016 election, which the intelligence agencies publicly assessed in January were for Trump’s benefit.

“Typically we’ve had great trust with our intelligence agencies,” Nunes said on Tuesday.

“And I continue to have that trust, but we have to verify, in fact, that all of the tools that are in place, that we oversee, are being used ethically, responsibly and by the law. And if anybody has abused those, we want to know about that. And that’s part of the reason why it’s important for us to know whether or not, as some press reports have indicated, the Department of Justice or any other agency tried to get the warrant on anybody related to the Trump campaign or any other campaign for that matter.”

Adam Schiff, the top Democrat on the House intelligence committee, said the authority under Section 702 would be preserved when asked by the Guardian on Tuesday about Nunes’ comments. But he did not rule out potential reforms to the law if necessary.

“Section 702 has been a far more impactful and important counter-terrorism program and tool,” Schiff said during a press conference on Capitol Hill.

“That doesn’t mean though that we shouldn’t explore whether there are ways to improve any of the protections in existing law or whether there are any changes that we need to make to the structure of the program.”

Schiff said the intelligence committee had been engaged in periodic briefings with members, given the law is poised to sunset this year. Should any questions come up in the same context that are pertinent to the Russia investigation, he added, they “ought to be answered so members understand how the program works [and] that it’s conducted in a lawful way.”