AMERICAN INTELLIGENCE agencies are used to analysing chaos, but in recent weeks they have endured a different type of uncertainty. First there was the resignation, announced on May 22nd, of Tulsi Gabbard, the director of national intelligence (DNI). Then came Donald Trump’s move to replace her with Bill Pulte, a housing official with no national-security experience who used his access to mortgage records to support probes of Mr Trump’s opponents. That prompted Democrats to declare that they would block the renewal of important spying powers until the president offered a better alternative.
FILE PHOTO: Jay Clayton, United States Attorney for the Southern District of New York, speaks during a press conference in New York City, (REUTERS)
Mr Trump did so on June 11th, nominating Jay Clayton, the US attorney for the Southern District of New York (pictured). Mr Clayton, generally considered a more sober choice than Mr Pulte, has a Senate confirmation hearing scheduled for June 17th. But as is so often the case with Mr Trump, the hiring-and-firing theatrics obscure broader battles, on the scope of surveillance powers and the role of the DNI itself.
Rules for surveillance have, over the decades, been loosened and tightened to adapt to shifting risks. In the 1970s Richard Nixon’s spies ran riot, bugging and burgling their way across Washington. The response was the Foreign Intelligence Surveillance Act (FISA) of 1978. The spooks henceforth had to ask a special FISA court for a warrant for each and every target. As part of the war on terror, Congress changed the rules in 2008. Under Section 702 of the amended law, agencies did not need individual warrants, but could instead get approval for surveilling foreigners’ messages by providing a broad rationale—say, counter-terrorism.
The result was a torrent of intelligence. In 2022, for instance, 59% of the articles in the president’s daily brief drew on information reported by the National Security Agency (NSA), America’s signals-intelligence service, using Section 702. Civil liberties advocates disliked the law both because of its broad scope and because the communications of some Americans were swept up by the FBI in so-called backdoor searches. Even Mr Trump was opposed to it, albeit briefly in his first term, believing that it had been used to snoop on his campaign.
This year the White House has pushed for the law’s renewal, without reform. Letting it lapse, warned Marco Rubio, Mr Trump’s secretary of state, would be “devastating to national security”. Section 702 affects America’s allies, too, particularly those in the intelligence-sharing Five Eyes Pact, which includes Australia, Britain, Canada and New Zealand. They not only benefit from the intelligence, but have deeply entangled intercept systems. Yet lapse the law did, at midnight on June 12th, after its renewal was blocked by both those opposed to Mr Pulte and those demanding stronger privacy protections. The concern now is that American telecommunication and tech firms will refuse to hand over certain data, fearing that they will no longer enjoy legal protection for doing so.
Sceptics retort that this is over-dramatic. The FISA court has approved broad warrants that last until March, so there is little risk of going dark overnight. Other parts of FISA also survive, allowing spies to seek warrants on a case-by-case basis. “Any genuinely urgent collection against a specific target can proceed through an individualised court process under Title I,” notes Patrick Eddington of the Cato Institute, a think-tank, “which is exactly what the Fourth Amendment contemplates and what the reform coalition has urged for years.”
In nominating Mr Clayton, Mr Trump now hopes to advance two important goals. The first is the renewal of Section 702, without the changes that privacy advocates seek. Ron Wyden, a Democrat, and Mike Lee, a Republican, have backed restrictions including a requirement for warrants to obtain Americans’ data. But the elevation of Mr Clayton may help the president win the necessary votes for a clean renewal of Section 702.
The second goal is to have Mr Clayton, assuming he is confirmed, oversee the continued shrinking of his agency. The office of the director of national intelligence (ODNI) was created in 2005 to promote sharing among intelligence agencies, whose tendency to hoard secrets had contributed to the failures before 9/11. However ODNI struggled to stamp its authority on the agencies that actually collected the intelligence and controlled budgets.
Indeed, the individual qualities of a DNI have often been more important than the office. John Ratcliffe, who served in the job in Mr Trump’s first term, noted in 2022 that other “DNIs were the head of the IC [intelligence community] only on paper”, but that Mr Trump elevated his role. Mr Ratcliffe now leads the CIA. Avril Haines, Joe Biden’s DNI, was close to the president and to Bill Burns, the CIA chief at the time, notes a British intelligence official who worked closely with America. “But I would say she was the exception more than the rule,” he adds. “If the boss isn’t seen to be invested in them, and if the agencies don’t see value in playing nice, then DNI finds it hard to gain traction.”
This was Ms Gabbard’s fate. When it became apparent that she was absent from important foreign-policy debates—she was on holiday during the raid to capture Nicolás Maduro and opposed war on Iran—her authority waned further. But she and Mr Trump had already taken steps to reduce ODNI’s heft, aiming to cut its staff by more than 40%. On June 10th Mr Trump said he wanted to go further with “immediate and needed downsizing…reverting staff to their home agencies”. Tom Cotton, a Republican senator, says he would be open to “outright eliminating” the office.
That is unlikely—it would require Congressional approval. But few Democrats are enthusiastic in their defence. “There is broad, bipartisan agreement that the [ODNI] is in need of thoughtful reform,” conceded Mark Warner, the top Democrat on the Senate intelligence committee, last year. ODNI was a useful point of contact for allies on big issues that transcended individual agencies, says Chris Taylor, a former Australian official now with ASPI, a think-tank in Canberra, but it “has ended up looking like any other bloated part of the furniture”.
That Mr Trump would seek to shrink an intelligence agency is unsurprising–MAGA has soured on American intelligence as a whole, viewing it as part of an entrenched deep state that has covered up the origins of covid-19 and more. But in this case, another agency will probably benefit, with more power flowing to the CIA. Mr Ratcliffe is one of the administration’s most hawkish voices on Russia policy, and reportedly the man who suggested Mr Clayton to the president. He is the “massive winner in all of this”, says Marc Polymeropoulos, a former CIA officer. For denizens of the deep state, that would be no bad thing.
