[Congressional Record Volume 172, Number 101 (Tuesday, June 16, 2026)]
[Senate]
[Pages S2803-S2804]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FISA
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.
[[Page S2804]]
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.
I yield the floor.
The PRESIDING OFFICER (Mr. Sheehy). The Senator from North Carolina.
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