[Congressional Record Volume 172, Number 93 (Tuesday, June 2, 2026)]
[Senate]
[Pages S2488-S2490]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                 Foreign Intelligence Surveillance Act

  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.

[[Page S2489]]

  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.

[[Page S2490]]

  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.