Durbin Questions Witnesses During Judiciary Committee Hearing On Oversight Of Section 702 Of The Foreign Intelligence Surveillance Act

As sunset of Section 702 approaches, today’s hearing features testimony from five senior administration officials

WASHINGTON – U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, today questioned witnesses at the Senate Judiciary Committee hearing entitled “Oversight of Section 702 of the Foreign Intelligence Surveillance Act and Related Surveillance Authorities.”  Today’s hearing examined the privacy and civil liberties impact of Section 702 and related surveillance authorities as Section 702’s sunset approaches.  The witnesses included Matt Olsen, Assistant Attorney General for the National Security Division at the Department of Justice; Paul Abbate, Deputy Director at the Federal Bureau of Investigation; Chris Fonzone, General Counsel at the Office of the Director of National Intelligence; George Barnes, Deputy Director at the National Security Agency; and David Cohen, Deputy Director at the Central Intelligence Agency. 

“I listened to how this program was described by our witnesses.  Mr. Fonzone described it as ‘an elegant program.’  Mr. Barnes described it as ‘agile and specific.’  Mr. Cohen referred to ‘precision.’  Mr. Olsen [said] that it was ‘irreplaceable and invaluable’ and so forth.  But since the last reauthorization of Section 702 in 2017, many violations of the constitutional, statutory, and court-imposed restrictions on Section 702 have come to light,” Durbin said.  “Last month, an unsealed Foreign Intelligence Surveillance Court, or FISC, opinion revealed that the FBI conducted improper searches of the 702 database for Americans’ communications [over] 278,000 times.  These searches have affected all manner of Americans, such as: individuals listed in police homicide reports, including victims, next-of kin, and witnesses to the crimes; 133 people arrested during the 2020 Black Lives Matters protest when, as the Justice Department itself concluded, ‘there was no specific factual basis to think the searches would turn up foreign intelligence’; and 19,000 donors to a congressional campaign when, ‘only eight identifiers used in the query had sufficient ties to foreign influence activities’ to allow such a search.”

Durbin continued, “Mr. Abbate and Mr. Olsen, you both testified regarding the remedial measures that have already been implemented or are underway.  But why should Congress—or the American people—trust the Executive to comply with the law this time in light of this track record?” 

Mr. Olsen responded that “the problems that you’ve cited and we’ve identified are not acceptable… but what I can tell you is that those problems pre-date the critical remedial measures that were put in place in 2021 and 2022.” 

Durbin responded, “It has been a source of frustration since the creation of this program to get adequate accountability for the numbers either on the positive side or the negative side.  And you have to, I hope, understand why some of us are skeptical at this point.” 

Durbin concluded by asking, “Is the skill of our adversaries and the potential destruction that they could bring to us by their malicious acts really made the Fourth Amendment something that we have to question—whether we can follow it in the 21st Century?” 

Mr. Olsen responded, “The FBI and Department of Justice is committed to ensuring the safeguards are followed with regard to 702… we do not need to dispense with the Fourth Amendment.  The Fourth Amendment applies fully to everything we do and it is the hallmark of the work we do when we investigate and prosecute cases.” 

Durbin responded, “If the reforms that you’ve mentioned in 2021 and 2022 are the only reforms that you’re bringing to this Committee as we discuss the future of 702, I’ve got to see more.  And I hope there is more that you can present.”  

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.