Fisa

Floor Speech

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Mr. DURBIN. Mr. President, when it comes to fraud, there is no excuse for it, but let's not overstate the obvious. Government Agencies across this country are doing the best they can in some instances but can always do better.

I don't think that we have a monopoly when it comes to virtue in our party or any other party. There are those who break the law and should be held accountable, and there are those who are doing their best to uphold the law, and they should be encouraged. To suggest that the Democrats are the party of fraud and the Republicans are the party of virtue--you know better than that. People in both political parties could have a tuneup when it comes to virtue, and I add myself to that list as well.

Section 702 of the Foreign Intelligence Surveillance Act, or FISA, is a powerful tool for collecting information that has been abused for way too long. Most Americans would flunk the test of, what is FISA? what is 702?

Here is what it boils down to: We approve, under law 702, allowing our intelligence Agencies to collect the private communications of foreigners overseas without a warrant. Why? We suspect those foreigners are involved in activity that is not safe for the United States. Am I supportive of that? Count me in.

But section 702 enables surveillance of more than just foreigners overseas; millions of innocent Americans' texts, emails, and phone calls are swept up in this dragnet if they communicated with a foreigner. So if you find somebody in a foreign country whom you suspect of illegal or dangerous activity and you wiretap their telephone communication, the person on the other end of the phone may not be a foreigner but an American citizen.

Unfortunately, it turns out that thousands and thousands of American citizens have their texts and phone conversations tapped under section 702. Our intelligence Agencies, including the Federal Bureau of Investigations, puts these communications in searchable databases that they use to spy on Americans without a warrant.

The independent Privacy and Civil Liberties Board and the FISA Court have documented shocking abuses of section 702 by our own government intelligence Agencies. And 702 has been used to spy on American religious leaders, American political parties, American journalists, and protestors from across the political spectrum. Such abuses have been documented under both Democrats and Republicans.

But the prospect of placing warrantless--that means no court approval ahead of time--surveillance power in the hands of this administration is particularly alarming. President Trump and his appointees have repeatedly weaponized the power of the Federal Government to target President Trump's perceived enemies.

Take Bill Pulte, President Trump's first choice to serve as the Acting Director of National Intelligence. Pulte currently serves as the Director of the Federal Housing Finance Agency, where he has pushed for criminal referrals against those who have angered President Trump, from New York attorney general Letitia James to Federal Reserve Governor Lisa Cook.

Even though Pulte himself has no--no--intelligence experience, President Trump chose him to lead our national intelligence apparatus and to help oversee that powerful section 702. The public outcry changed the President's mind. The President, after he heard from both Democrats and Republicans what a terrible choice Pulte would be, dropped him and now has nominated Jay Clayton, U.S. attorney for the Southern District of New York, to serve as Director of National Intelligence.

This episode demonstrates the inherent danger of warrantless surveillance. No single branch of government in the United States should have unchecked power to spy on Americans, whether this power is in the hands of Bill Pulte; Jay Clayton; Kash Patel, the leader of the FBI; or whoever President Trump installs next.

Repeated efforts to rein in the abuses of section 702 with minimal reforms have failed time and time again. And now the Trump administration refuses to disclose the latest ruling from the FISA Court detailing ongoing abuses.

The long and ongoing history of abuse makes it clear that without checks from a separate branch of government, section 702 will always be at risk of abuse as a massive delegation of power to an executive Agency. That is why the drafters of the Constitution many years ago-- 250--decided that we should never have warrantless searches of Americans. They prohibited it.

It is time to stop tinkering around the edges of 702 and make meaningful changes once and for all. That is why I joined Republican Senator Mike Lee of Utah to introduce the SAFE Act--a bipartisan bill in the Senate that would require the government to obtain a judicial warrant before searching Americans' communications collected under section 702. But Republican leadership have refused to hold a vote on the SAFE Act and instead have attempted to extend FISA's authorization without any serious reform.

I have been through this many times since 9/11. I am obviously skeptical of this power being given to the government. And I have watched, when we find abuses, well-documented abuses, the limited reforms that are finally accepted, and they just don't do the job.

Let me give you, from the Brennan Center for Justice report, some numbers that tell the story.

Congress and the FISA Court have attempted to place some modest limits on the government's use of backdoor searches.

That is what they call it when Americans are swept up.

Intelligence agencies, and the [Federal Bureau of Investigations] in particular, have habitually violated those limits. In 2022, the FISA Court observed that ``compliance problems with the FBI's querying of Section 702 information have proven to be persistent and widespread.'' Indeed, in March 2022, the government reported more than 278,000--

More than 278,000-- noncompliant searches of information obtained through FISA.

These noncompliant searches would include eavesdropping on Americans without government approval--278,000.

Moreover, from 2018 through 2024, the law required the FBI to obtain a warrant before conducting backdoor searches in a very small subcategory of cases involving certain criminal investigations. Despite conducting dozens of such searches during that time, the FBI never once got a warrant.

As required by our Constitution.

The abuses continue, and there are those we know nothing about that are going on as of this day.

There was an investigation of the use of FISA, leading to a classified report, which I have seen myself in the Senate intelligence SCIF. Members of the Senate can have access to it, but the Trump administration refuses to make it public for the rest of America. That is unfortunate. It makes the argument that I believe is compelling in this case.

Republican leadership have refused to hold a vote on this reform measure Senator Lee and I have introduced. They have argued this program is just too essential to allow for any delay in reauthorization or consideration of real reforms.

Yet, just recently, President Trump said that before we reauthorize FISA, we have to agree to add his elections reform measure--the one that requires ID requirements before you can vote. Now, there are certain IDs which are easy, but in the original version of this bill that the President wants, driver's licenses, which we use all over the country, would not be acceptable.

Congress has time to get this right. Section 702 surveillance operates under yearlong certifications approved by the FISA Court, and it has already been recertified through March of next year, 2027. This means intelligence collection under 702 will be able to continue until next March even if the law technically expires this week--or last week.

But if my colleagues want to reauthorize section 702 quickly, there is a simple solution, and my colleague Senator Wyden of Oregon made this point on the floor last week. We can bring reform to section 702 and give larger numbers to support it and its reauthorization. Support these commonsense, bipartisan reforms supported by a majority of American citizens to prevent 702 from being used to violate basic constitutional rights.

Unfortunately, our demands for reform have received no help from the President. He is more concerned with pushing the SAVE America Act, changing every election--his bill to make it harder for Americans to vote.

Over the weekend, President Trump announced that he opposes any FISA reauthorization that does not include Save America, as I mentioned. This act would slap undue burdens and excessive costs on Americans seeking to exercise their most fundamental right--the right to vote.

So why would the President support adding this measure to critical 702 reauthorization? Because he is afraid of the next election. That is what it comes down to. He is afraid his party is going to lose in November. He saw when he went to Texas and argued that the Republicans in control there should redraw all the congressional maps for the November election on the chance that the Republicans will pick up more seats. We will see what happens.

Section 702 must not be linked to President Trump's efforts to suppress the vote. Instead, Congress should reauthorize it with reasonable reforms, bipartisan reforms that protect our national security and safeguard America's constitutional rights.

Trump's campaign of retribution and attacks on America's ability to vote make this mission all the more important. We cannot allow a President consumed by vengeance to monitor Americans' private communications with no external checks or limits.

Our Nation's Founders understood this well, which is why they created the Fourth Amendment to safeguard Americans from government overreach into their lives. For too long, section 702 has jeopardized those protections, but we have a chance to end that abuse now.

Let's not wait any longer. Congress should reauthorize section 702 with sensible reforms and finally put an end to the unconstitutional surveillance of innocent American citizens.

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