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Floor Speech
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Mr. DURBIN. Mr. President, do you remember when the ICE agents were in the city of Chicago? I can't forget it. Things were happening in the city I am honored to represent I had never seen before. We had these people who were kind of in uniform, but not really, wearing masks, carrying guns, and they were pursuing ``the worst of the worst.'' They were looking for rapists, murderers, terrorists, the criminally insane, child predators, on and on. And they certainly were looking for people who came into the United States and didn't have legal immigration status.
They frightened a community in a way that I had never seen before. People in parts of Chicago who had lived there peacefully, quietly, without any problem for years reached the point where they were afraid to go to the grocery store. They stopped going to church. They didn't know what was next for the ICE agents.
They patrolled the streets. They went after individuals. They arrested some. They detained others. There is one scene that is still in my memory. The scene was when they decided that there was someone living in a home who was an illegal person, they crashed down the front door and broke it down. They took this man out of the shower. They wrapped a towel, bathrobe around him, and took him off to be arrested. Turned out he was an American citizen. He had committed no crime. They were just wrong.
And people said: Wait a minute. You mean the ICE agents can crash down my front door? They didn't have a warrant from a court or anything to authorize it. They just did it. ``Can you do that in America,'' people were asking. It is a basic question. It is not clear, the answer, if you look at the conduct of this administration when it comes to the ICE operations.
There is one thing that is clear: this little book called ``The United States Constitution.''
Let me read you a section of it when it comes to your right as an American. Fourth Amendment:
The right of the people to be secure in their persons, [homes], papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Bill of rights, fundamental to who we are as Americans. Something we take for granted. It is my home. You are not coming into my home unless you have got some judge that has approved it and you have gone through the right process. You can't decide, just because you are wearing a badge, to crash down my front door.
Well, we have an interesting debate going on this week in the U.S. Senate that goes right to the heart of that amendment, the Fourth Amendment. Later this week we are expected to consider legislation to reauthorize a rather obscure area of the law, section 702 of the Foreign Intelligence Surveillance Act, known as FISA.
What is this FISA all about? It is all about 9/11. I have been around the Senate for a few years, and I can remember the tragedy of 9/11, the thousands of Americans who lost their lives and the fear we had as to what was next, our determination to keep our country safe.
I am proud to be a Democrat, but I will tell you I think President George W. Bush, a Republican, handled that tragedy in a superb way. He led our Nation in a time when we needed leadership. He made it clear to us and said words that I still recall, that this war on terrorism was not going to be a war against the religion of Islam. He said it was a peaceful religion. I remember that pronouncement he made because it was considered to be courageous, politically courageous, for him to say that the group that attacked us, their religion should not be held against them.
I am not going to dwell on that, although I do want to salute President George W. Bush again for his courage in leading us in that moment.
But we decided also that we weren't going to be attacked again. No. We are going to prepare ourselves. We are going to defend ourselves. We are going to create Agencies of our government that have the authority, the power, and the resources to keep us safe. Never again; no 9/11.
And so we created a brandnew structure of intelligence Agencies in America. I have been in Congress for a number of years, familiar with the old way we did things, served on the Senate Intelligence Committee. It was going to be a new day, a new organization, and we were going to do everything we can to make sure that 9/11 never happened again.
We created the Foreign Intelligence Surveillance Act, and that basically said: We are going to listen to and hear and pay attention to our enemies. We are going to stop them before they hit us.
Most Americans would say: Good. That is why we elected you.
For years, Congress--although despite this--has avoided confronting a fundamental flaw at the heart of our surveillance authority. Under section 702 of the Foreign Intelligence Surveillance Act, the government collects communications of foreigners--foreigners--overseas without a warrant from any court.
But, in the process, the government, unfortunately, over the years collects millions of communications of innocent Americans--people they are not authorized to surveil.
Once collected, the government can search these communications without a warrant from any court. So here we have this question about the possession of your privacy as an American citizen being assaulted by your government, despite that Fourth Amendment.
Every American needs to understand that this law, which I referred to, allows the government to listen to your phone calls, read your private messages that have been collected under section 702. The government does all that without any court approval. They are not breaking down your front door; they are listening on your phone.
This is a fundamental flaw that I have worked to change for a long time. And over and over again, every administration--both political parties--said: Senator, don't lose any sleep. It is just a little problem. We will take care of it.
But the Fourth Amendment's prohibition on warrantless searches is not an optional decision by the government. That Fourth Amendment is a core safeguard of liberty guaranteed by our Constitution.
Every single Member of the Senate--Democrats, Republicans--raised their hand and took an oath. What was that oath all about? To uphold and defend this little book.
As detailed in a recent report by the nonpartisan Brennan Center, the Federal Bureau of Investigations and the National Security Agency have abused section 702 for years--years. These abuses, according to the FISA Court, have been ``persistent and widespread.'' The government itself has reported hundreds of thousands of unlawful searches using this authority.
In other words, 702 is directed toward foreigners, remember? They are using it against Americans. They are collecting information about people who are not even covered by the Foreign Intelligence Surveillance Act.
As further detailed in the Brennan Center report, the government has used section 702 to spy unlawfully on many people. Whom have they spied on? Members of Congress, congressional staff, judges, journalists, protestors, political donors, even women on dating apps. Go figure. That is going to make us safer in America?
Past attempts at reform have not solved the problem, and I have been at this for many years.
As the Brennan Center explained, ``The current system of section 702 oversight relies almost entirely on the executive branch self-policing to prevent, detect, and report abuses.'' In other words, the fox is watching the chicken coop. That is a flawed system under any administration. Under this administration, it is especially alarming.
The FISA Court has already raised concerns about how this Trump administration is using the powers that I have described to you this afternoon. But the Trump administration is keeping the latest opinion of the court secret from the American people. I have seen it. I invite every Member of the Senate to go and see it. I am not going to betray anything that is secret or confidential, but I guarantee you that if you will take time out of your busy schedule to go down to what we call the SCIF to order up a copy of a document--I won't be any more specific--and take the time--it will take you a little time to read it, your opinion of the role of FISA and the rights of Americans will be impacted for sure.
We can't wait to fix 702. Now is the time to do it. Now is the time to say we can have both liberty and security. I credit my colleague from Oregon Ron Wyden, who came up with that phrase, and it says it all. Can we be safe in America and still be free? Is it possible? I think it is.
This issue is even more urgent because of the Trump administration's disregard for the rule of law. The question before Congress is whether we will grant warrantless surveillance authority to President Trump and MAGA loyalists like FBI Director Kash Patel and the new--announced today--Director of National Intelligence Bill Pulte for the rest of this administration.
I am not going to go into the suggestion of Mr. Pulte to head our intelligence Agencies. I will simply just say: totally unqualified.
The current administration has repeatedly targeted political opponents. We have seen it all across the board, including former Fed Chair Jerome Powell, former FBI Director James Comey, and New York attorney general Letitia James. It has attacked independent institutions like the Privacy and Civil Liberties Board. I know that because I had a hand in creating it. We said if there is going to be all of this surveillance going after enemies of the United States, let us make sure there is a Board of five people who will be watching these activities and reporting the excesses to Congress if changes need to be made.
What did the Trump administration do to the five-member Privacy and Civil Liberties Board I just described? They removed the three Democrats on the Board so it couldn't function.
The courts have a responsibility here as well. They fired career law enforcement officials and public servants at the FBI and the Department of Justice. They have cleaned shop. These people would have been responsible that a program like 702 be lawful and nonpartisan. They are gone, removed by this administration--so the watchdogs that we built into the system to make sure that no President, no administration, goes too far in the exercise of their responsibilities and duties.
Yes, we want a safe America, but, yes, we want it to be a lawful country too. We want it to abide by the Constitution, and those of us who swore an oath to uphold and defend it have the first responsibility.
In the hands of a government that has treated the Constitution as an afterthought, Congress should not place blind trust in the hands of an administration which clearly can use this surveillance power for political purposes.
It is not hard to imagine what this President and his handpicked FBI Director Kash Patel could do with unchecked surveillance powers.
Are my fears of Mr. Patel warranted? Read his words, his own book that he wrote about his view of government. And just for convenience, he provides not an index but a list of his political enemies--his political enemies. Now, this man is the head of the Federal Bureau of Investigation and has the power of the surveillance, which I have described to you. Trust him? It is not hard to imagine why this President chose him for political reasons.
What happens when the administration uses section 702 to spy on Americans, perhaps those who protested the murder of two innocent people in Minneapolis during the ICE raids? They used to spy on Black Lives Matters protestors. Is it hard to imagine that they would extend that to those who question the masked ICE agents' activity?
What happens if journalists have their texts and phone calls snooped on because they dare to report controversial news about this administration's misconduct?
Any Member of Congress who wants to ensure there are checks on this out-of-control administration should not vote to reauthorize the authority of 702 without meaningful guardrails. I want 702 to continue to be strong, to be legal, to be constitutional. We can make it such.
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