"The Trump administration has decided that the National Security Agency and the F.B.I. can lawfully keep operating their warrantless surveillance program even if Congress fails to extend the law authorizing it before an expiration date of New Year’s Eve, according to American officials.
"National security officials have implored Congress for the past year and a half to extend the legal basis for the program, Section 702 of the FISA Amendments Act, before it lapses at the end of the month. They portrayed such a bill as the 'top legislative priority' for keeping the country safe.
"But with Congress focused on passing a major tax cut and divided over what changes, if any, to make to the surveillance program, lawmakers may miss that deadline. Hedging against that risk, executive branch lawyers have now concluded that the government could lawfully continue to spy under the program through late April without new legislation.
"Intelligence officials nonetheless remain intent on getting lawmakers to pass a durable extension of Section 702 by the end of the month — warning that even a stopgap short-term extension of several months, as some lawmakers have proposed, would risk throwing the program into a crisis in the spring.
"'We fully expect Congress to reauthorize this critical statute by the end of the year,' said Brian Hale, a spokesman for the Office of the Director of National Intelligence. 'Not doing so would be unthinkable in light of the considerable value Section 702 provides in protecting the nation.'
"The expiring law grew out of the Bush administration’s once-secret Stellarwind warrantless surveillance program after the Sept. 11 attacks. After it came to light, Congress enacted the FISA Amendments Act of 2008 to legalize a form of the program.
"Under Section 702, the N.S.A. and the F.B.I. may collect from domestic companies like AT&T and Google the phone calls, emails, texts and other electronic messages of foreigners abroad without a warrant — even when they talk with Americans. The program has expanded to a broad array of foreign intelligence purposes, not just counterterrorism.
"If Congress fails to reauthorize the law this month, Mr. Hale acknowledged that the government believes it can keep the program going for months. Its reasoning centers on a legal complexity in how the program works: Under the law, about once a year, the secretive Foreign Intelligence Surveillance Court sets rules for the program and authorizes it to operate for 12 months.
"The court last issued a one-year certification on April 26. That matters because a little-noticed section of the FISA Amendments Act says that orders issued under Section 702 'shall continue in effect until the date of the expiration.'
"Mr. Hale said the provision, which is recorded in federal statute books as a 'transition procedures' note accompanying the main text of the law, makes it 'very clear' that 'any existing order will continue in effect for a short time even if Congress doesn’t act to reauthorize the law in a timely fashion.'
"Given that conclusion, the government is making no plans to immediately turn off the program on New Year’s Day, no matter what happens in Congress, according to a United States official familiar with the Section 702 program who spoke on the condition of anonymity to discuss a sensitive topic."