Government spy power deal hands hidden hope to Trump allies

The intelligence community and its allies in Congress waged an all-out battle to preserve a contentious government spy power — and they won, fending off a conservative-liberal coalition that demanded a dramatic overhaul.

But they may not be celebrating for long.

That’s because, in order to push through reauthorization of the surveillance power known as Section 702, which allows the government to collect and search foreign communications without a warrant, Speaker Mike Johnson had to make an eleventh-hour concession to hardliners on his right this month by slashing the program’s extension from five years to two years. While it looked like a small tweak in the overall sweep of the brutal surveillance debate, it reflected a high-stakes political gamble.

Conservatives who haven’t given up on slashing the scope of government’s wiretapping authority are already strategizing about how to win the next battle in 2026. They see their prospects as significantly boosted if former President Donald Trump — who earlier this month called on Congress to “kill” the broader spy law that Section 702 is nested in — wins back the White House in November.

The shorter timeframe "is certainly better, because we’ll get another whack at the kind of reforms that we think we need to have,” Judiciary Chair Jim Jordan (R-Ohio) said in an interview.

The House's dramatic deadlock on whether to require a warrant when searching for Americans in the foreign communications collected under the spy power shows “where the Congress is moving,” Jordan added, predicting that a Trump victory would set the stage for “real reform” of the program.

No matter who wins the White House, the enduring push to revisit the spy power amounts to a warning for intelligence agencies that helped the Biden administration lobby hard to reauthorize the program. Even after 13 months of effort by national security hawks to assuage bipartisan worries that extending the program without major changes erodes Americans’ privacy rights, the foreign surveillance fight still went down to the literal wire — with a failed tie vote on the warrant requirement, a flashpoint in the debate, that killed it for now.

If you ask senior officials, they’re not worried about Jordan’s camp getting another shot.

“I think all of the momentum is with the government based on these votes, and that we overcame a lot of headwinds here,” said Matt Olsen, the assistant attorney general for national security, adding that he expects to be “in a much better position in two years than we were going into this reauthorization.”

Security hawks like Olsen acknowledge the two year renewal of the spy power is far from ideal. But they argue that the bill includes substantial reforms that will make beating reform backers easier in 2026, including new authorities they're betting can help peel away lawmakers who would otherwise entertain a dramatic overhaul.

Paul Nakasone, who stepped down as head of the NSA and U.S. Cyber Command in February, pointed to a provision in the new reauthorization bill that eases the use of Section 702 to go after fentanyl traffickers as one of the “big selling points,” adding: “How is it not when so many Americans are getting poisoned by this?”

Privacy advocates, for their part, are betting that the FBI won't have a blemish-free surveillance record by the time the next fight starts to get underway next year. They spent months, on and off the Hill, building alliances to scrutinize government surveillance, gaining new supporters and getting the closest they have come to a win. They are predicting their ranks will grow.

“Two years from now, when members see that the abuses and violations haven’t stopped, that’s going to increase the demand for meaningful reforms,” Sen. Ron Wyden (D-Ore.), a vocal champion of changing Section 702, said in a statement.

Hanging over all the early jockeying are plenty of unknowns that will frame up the 2026 debate. The biggest curveball of all, of course, is whether Trump will be back in the White House.

“Let’s say that you have a Trump administration ... they’re going to be much more amenable to a warrant requirement than the Biden administration,” said Rep. Andy Biggs (R-Ariz.), who helped spearhead the push for that mandate.

Even Connecticut Rep. Jim Himes, the top Democrat on the Intelligence Committee, acknowledged the potential pitfall of a two-year reauthorization. If Trump is back in the White House and “decides that he doesn’t like the authority," Himes said, "then we’re in a lot of trouble, right?”

“Because the truth is, you know, [House Intelligence Chair Mike] Turner and I and many others worked hard, but we had a lot of air cover from the [Biden] administration. … If the administration weren’t to provide that air cover, we could have a problem,” he added.

Trump's decision this month to step into the House’s debate on Section 702 frustrated supporters of the program, in part because his criticism of the power conflated Section 702 with an unrelated portion of the broader surveillance law that was not up for reauthorization. Shortly after he weighed in, 19 conservatives prevented Johnson’s plan from getting to the floor; many lawmakers believe Trump’s middle-of-the-night edict helped keep Johnson at the negotiating table after the setback.

It wasn't the first time Trump has muddled a surveillance fight on the Hill. He helped upend three unrelated surveillance programs in 2020, all of which ultimately expired, as he back-channeled with GOP privacy hawks. That dynamic is almost all but guaranteed to return if Trump is back in the White House; not to mention that he’s close with some of the loudest proponents of overhauling Section 702, like Jordan.

But the former president also has a mixed record on the surveillance search power, one that's keeping hopes alive among some intelligence community allies that another Trump administration wouldn’t automatically spell trouble for Section 702. For instance, Trump backed a permanent reauthorization of the power when signing a yearslong extension of it back in 2018.

“Regardless of who is president, the intelligence advisers of both Biden and Trump are opposed to the warrant requirement. … [And] keep in mind, Trump signed a clean 702 extension without any reforms, right? So obviously, his people told him that this is a really important tool,” said Rep. Brian Fitzpatrick (R-Pa.), a member of the House Intelligence Committee.

Trump is hardly the only wild card affecting the debate. Control of both chambers of Congress could easily flip in November, and House Republicans are openly speculating that Johnson won’t be leading them come January. That's in part thanks to onetime allies rankled by the Louisianian's handling of the monthslong surveillance fight.

Those frustrated House Republicans, largely conservatives, believe he put his thumb on the scale against the type of sweeping changes backed by a bipartisan coalition at multiple points, including opposing the warrant requirement, keeping a separate data broker amendment out of the floor debate and generally aligning himself more closely with the Intelligence Committee over his former committee colleagues on the Judiciary panel.

In addition, while intelligence agency allies are confident that changes in the just-passed bill will ultimately eliminate issues at the bureau, there are also real worries that the reforms won't bear much fruit in time for the next legislative debate. On that note, the Biden administration is already strategizing ways to more reliably insulate Section 702 from future high-profile politicization.

Justice Department officials are exploring how to share classified information more regularly with Hill staff. And one senior administration official, granted anonymity in order to speak candidly about the spy power, suggested the authority should be reauthorized permanently because “it's not clear that there's any basis to think that this needs to remain a temporary experiment."

The one thing both sides seem to agree on, and even quietly grumble about, is how little time there is before the next surveillance fight begins.

As Nakasone put it: “Reauthorization starts the Monday after the bill was signed.”