WASHINGTON — The House did not pass a short-term extension of a powerful surveillance tool Thursday morning as members headed out of town for a recess, all but ensuring the spy power’s statutory authority would lapse going into the weekend.

The vote to reject a reauthorization of Section 702 of the Foreign Intelligence Surveillance Act now sends the surveillance power into uncharted territory, with questions over whether the lapse will handicap the ability of the U.S. government to collect information from service providers.

For years, national security hawks have issued dire warnings about what a lapse in statutory authority could mean, saying it would hamstring a critical tool used to help foil terrorist attacks and keep Americans safe.

Now, those predictions will be put to the test — at least in the short term — with no immediate path forward to reauthorize the authority on Capitol Hill.

Congressional leaders had already struggled this year to secure a long-term extension of the spy authority, amid a bitter and grueling debate over privacy protections.

Meanwhile, President Donald Trump’s decision to pick Bill Pulte as the acting director of national intelligence solidified Democratic opposition to a short-term Section 702 reauthorization, even among ardent supporters of the program.

Section 702 allows the U.S. government to collect digital communications of foreigners located outside the country. But the program is controversial because it also sweeps up the communications of Americans and allows the FBI to search through data without a warrant, using information such as an email address.

Hours after the House vote, Trump posted on social media that he would nominate Jay Clayton, currently leading the office of the U.S. attorney for the Southern District of New York, to be the next director of national intelligence. The president in the post did not mention what that means for his pick of Pulte to fill the role temporarily.

Uncertainty

The short-term patch, which the House rejected Thursday, would have extended the surveillance authority with no changes, ensuring the government could continue to take in information from electronic communication service providers.

The House voted 198-218 to reject the bill, with 15 members not voting. And as usual with Section 702, the tally did not fall cleanly along party lines.

Seven Democrats voted for the measure, and 19 Republicans voted against it. That included Rep. Thomas Massie, R-Ky., who cited privacy concerns that the FBI does not need a warrant to search for information from Americans swept into the program.

The 15 lawmakers who did not vote included Rep. Andy Biggs, R-Ariz., who has been outspoken about privacy concerns during the reauthorization push this year.

But now, the debate turns to whether service providers will continue to provide information to the U.S. government without the statutory authority in place.

The Foreign Intelligence Surveillance Court reviews the program’s compliance record and approves certifications made to the court, according to the Privacy and Civil Liberties Oversight Board.

The intelligence court in March gave the green light for the program to operate for another year, the New York Times has reported.

Rep. Jim Himes of Connecticut, the top Democrat on the House Intelligence Committee, said there is a theory that the program can continue without reauthorization because the intelligence court has certified the Section 702 program for a year.

“That’s never been tested in court, and I suspect it will be tested in court,” Himes said. “In fact, a judge may rule that a certification is sufficient for the program to continue. But they may not.”

“Again, this has never been tested in court. And my point of view is, why roll the dice on something here which is truly a life-or-death issue? But it looks like we’re going to roll those dice,” he said.

Asked about the topic, House Judiciary Chairman Jim Jordan, R-Ohio, said: “My guess is the program will probably continue.”

Rep. Rick Crawford, R-Ark., the head of the House Intelligence Committee, expressed uncertainty about what might happen next without the statutory authority in place.

“It’s the liability protections that exist under current statute that would go away for those carriers,” Crawford said. “Are they going to feel adequately protected? That’s the question.”

Objections to Pulte

The House vote also came amid Democratic uproar over Trump’s decision to pick Pulte as the acting director of national intelligence. Trump has said Pulte will take over as the temporary director June 19.

House Minority Leader Hakeem Jeffries, D-N.Y., called it “a show vote that House Republican leadership brought to the floor today, because they knew the bill would go down in flames.”

“We’ve made clear, publicly, and directly to Republicans in the Congress, and certainly to the administration, that in order to get back to good faith negotiations about surveillance authority, the proposed elevation of Bill Pulte needs to be reversed,” Jeffries said.

House Democrats are unified in that position, and so are Senate Democrats, Jeffries said.

Himes said Pulte in theory could conduct searches for information related to Americans. “It’s a machine gun in the hand of a 5-year-old,” Himes said.

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