Durbin Questions Witnesses During A Senate Judiciary Committee Hearing On The Need To Reform The Foreign Intelligence Surveillance Act

Durbin Questions Witnesses During A Senate Judiciary Committee Hearing On The Need To Reform The Foreign Intelligence Surveillance Act

WASHINGTON - U.S. Senate Democratic Whip Dick Durbin (D-IL), Ranking Member of the Senate Judiciary Committee, questioned witnesses during a Senate Judiciary Committee hearing entitled "Review and Reform: The Foreign Intelligence Surveillance Act and Executive Accountability." In less than three months, Section 702 of the Foreign Intelligence Surveillance Act (FISA) will expire.

Durbin began his remarks by commenting on the lawlessness of the Department of Homeland Security's (DHS) cruel immigration operations in Chicago, Minneapolis, and more, and the lack of warrants when conducting these raids.

"This issue [FISA] is timely not just because of this Section [702] but because of current American awareness of the Fourth Amendment to the Constitution… We are talking about situations in Chicago and Minneapolis where warrantless searches led to helicopters landing on the roof of apartment buildings and people crashing down the front doors of homes without a warrant. It appears Americans don't care for that any more than they did at the time of the British controlling this country. It appears people want to know by what right are you doing this to me and that is a legitimate question," said Durbin.

Durbin began his questions by asking Elizabeth Goitein, the Senior Director of the Liberty and National Security Program at the Brennan Center for Justice, about the feasibility of a warrant requirement for U.S. persons searches. The intelligence community and the Federal Bureau of Investigation (FBI) have touted reforms that they say have dramatically reduced the number of warrantless U.S. person searches.

"The number of such FBI searches has reportedly fallen from nearly three million in 2021 to about 5,500 in 2024. Is that what you understand?" Durbin asked.

Ms. Goitein responded that they don't know the number of FBI searches for 2024, but it fell to 57,000 in 2023. She continued to say, "We also know around 50 percent of the drop can be attributed to a change in the way the government counted queries which happened in 2022."

"They have also reported that less than two percent of these searches turn up results. By my count, that would mean requiring the FBI to get a court order just over 100 times a year-far fewer than the number of court orders they already obtain every year under other FISA authorities is that correct?" Durbin asked.

Ms. Goitein responded, "All of the reform proposals under serious consideration do not kick in until after a search has been run and a communication has been identified. The warrant would only be required in those cases, which is two percent. If there were 5,000 queries in 2024, that would be a little over 100 warrant applications."

"That seems to be not an unreasonable expectation on the part of people who are mindful of this Fourth Amendment," Durbin said.

Ms. Goitein agreed.

Durbin then asked Adam Klein, the Director of the Strauss Center for International Security and Law at the University of Texas at Austin, about Section 702 queries and the Fourth Amendment.

"You talk about your reverences for the Fourth Amendment in the courses you teach. Why would asking the agencies to go for a warrant for more than 100 cases be a hardship?" Durbin asked.

Professor Klein responded, "The issue is that in the most important cases where the query is exceptionally valuable… you do not know there is a worrying connection until you run the query." He continued to say that certain queries could be more important given the complexity of the case. He stated, "you will not get a court order unless you realize the information is there."

"You believe current rules don't allow that to happen?" Durbin asked.

Professor Klein responded, "Current rules do not require a court order." He stated that current rules could allow for fewer queries.

Durbin asked Ms. Goitein for her response to Professor Klein's comments.

Ms. Goitein responded, "The fact that the government is conducting thousands of searches of Americans' private communications every year on just a hunch is exactly why we need a warrant requirement. The purpose of warrants is to prohibit exactly those kinds of fishing expeditions. That is the balance that the Framers struck."

Video of Durbin's questions in Committee is available here.

Audio of Durbin's questions in Committee is available here.

Footage of Durbin's questions in Committee is available here for TV Stations.

Durbin and U.S. Senator Mike Lee (R-UT) previously introduced the bipartisan Security and Freedom Enhancement (SAFE) Act, a compromise bill that protects Americans from foreign threats and from warrantless government surveillance. This legislation reflects a carefully crafted, pragmatic approach that protects national security by reauthorizing Section 702 of FISA and protects Americans' privacy and civil liberties by enacting meaningful safeguards against warrantless surveillance and government abuses.

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