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The recent House Judiciary Crime and Federal Government Surveillance subcommittee hearing on federal surveillance revealed a disturbing truth that Americans should find alarming: our government's surveillance apparatus has routinely expanded to target U.S. citizens, regardless of which party controls the White House. This isn't merely a Biden administration problem, nor was it uniquely a Trump administration issue. It is a systemic failure spanning multiple administrations with deep implications for our constitutional rights.
At the heart of this failure is a linguistic sleight of hand. Intelligence agencies use terms like "queries" instead of "searches" to sidestep Fourth Amendment protections. But make no mistake – as Chairman Jim Jordan bluntly stated during the hearing, "a query is a fancy name for search." When government agencies access databases containing Americans' private communications without warrants, they are conducting searches in everything but name.
The scale of this problem is staggering. According to testimony, the FBI conducted nearly 3 million such searches of Americans' communications in 2021 alone. Even more troubling, the FBI failed to follow its own rules in 278,000 instances, and audits revealed a shocking 85% non-compliance rate in some cases. Rather than occasional mistakes, these issues represent a systematic disregard for constitutional safeguards.
The Rare Issue with Bipartisan Concerns
In today's polarized political climate, few issues unite lawmakers across party lines. Yet FISA reform appears to be one of them, though for somewhat different reasons. Everyone should watch the entire hearing firsthand to see where they land on this issue.
Republicans, led by Judiciary Committee Chairman Jim Jordan and Subcommittee Chairman Andy Biggs, emphasized past abuses under previous FBI leadership. They pointed to a vote on requiring warrants for searching Americans' communications that failed in a tie (212-212) in the previous Congress. As Jordan put it: "Here's the way it works in our country. You're an American citizen, the government wants to go look at your stuff. You’ve got to go to a separate, equal branch in government and get a warrant. It's pretty simple."
Democrats, represented by Ranking Member Jamie Raskin, focused on the dismantling of oversight mechanisms under the current administration. Raskin noted that President Trump had fired all Democratic members of the Privacy and Civil Liberties Oversight Board (PCLOB), leaving it without the quorum needed to function. "We are less safe, and we're less free than we were on January 19, 2025," Raskin stated, expressing concern about unchecked surveillance powers in the hands of an administration he views as hostile to various groups.
All witnesses emphasized the urgent need for reform. The subcommittee heard testimony from diverse experts representing various perspectives: Gene Schaerr, General Counsel of the Project for Privacy & Surveillance Accountability; Phil Kiko, Principal at Williams & Jensen and former Chief of Staff to the House Judiciary Committee; James Czerniawski, Senior Policy Analyst for Technology & Innovation at Americans for Prosperity; and Kia Hamadanchy, Senior Policy Counsel at the American Civil Liberties Union (ACLU).
Despite these different emphases, both sides agreed on a crucial point: Americans deserve Fourth Amendment protections against warrantless searches of their communications, even when those communications are "incidentally" collected through foreign intelligence gathering.
The Perkins Coie Case Study: When Surveillance Goes Unchecked
Perhaps no example better illustrates the dangers of unchecked surveillance than the revelations about Perkins Coie, a law firm with deep ties to Democratic politics. While not discussed directly in the hearing, this case provides essential context for understanding how FISA powers can be abused.
In 2022, a whistleblower revealed that the FBI had established a "Secure Work Environment" within Perkins Coie's Washington offices around 2012. This workspace allegedly gave the law firm's staff potential access to classified FBI databases. Perkins Coie attorney Michael Sussmann, who was recently found not guilty of lying to the FBI, reportedly had badge access to both this workspace and FBI headquarters.
The timing is telling. A FISA court ruling found that from November 2015 to April 2016 – coinciding with the Republican presidential primary – tens of thousands of improper searches of NSA databases were conducted, with an 85% non-compliance rate. Judge Rosemary Collyer noted that these non-compliant queries often involved "the use of the same identifiers over different date ranges," suggesting specific individuals were being targeted and tracked.
When NSA Director Admiral Mike Rogers discovered these improper searches, he reportedly shut down FBI contractor access to the system on April 18, 2016. The very next day, figures connected to the Clinton campaign began setting in motion what would become the debunked Steele Dossier – which was later used to justify FISA surveillance that had apparently been occurring already.
The consequences for these abuses were long in coming. Given the 2022 whistleblower’s claims, it is uncertain if Rogers really did remove access to all FBI subcontractors—more importantly, remove FBI workstations from unsecured, non-government locations. On March 6, 2025, President Trump signed an executive order addressing this arrangement, stripping security clearances from Perkins Coie lawyers and removing FBI workstations from the firm's offices.
Even with this belated action, individual accountability remained minimal. FBI lawyer Kevin Clinesmith, who falsified evidence to renew a FISA warrant against Carter Page, received just 12 months of probation instead of the typical five-year sentence for such offenses. As Gene Schaerr testified during the hearing, "It was an unfortunate slap on the wrist, and... I thought it was an outrage that Clinesmith got such a low sentence for such an egregious act of dishonesty before the FISA Court."
Fundamental Issues Requiring Reform
The hearing identified several critical issues requiring immediate reform:
The "Backdoor Search" Loophole: Currently, the government can search for Americans' communications in data collected under FISA Section 702 without obtaining a warrant. As the hearing noted, a federal court recently ruled this practice unconstitutional.
The Data Broker Loophole: As James Czerniawski testified, agencies can "sidestep the requirements to the Fourth Amendment, access and collect massive amounts of private information on Americans by exploiting a legal loophole... government agencies like the Federal Bureau of Investigation, Internal Revenue Service, the Drug Enforcement Agency and the Department of Homeland Security can simply turn to data brokers and purchase mass amounts of Americans data."
Inadequate FISC Oversight: The Foreign Intelligence Surveillance Court lacks robust adversarial processes. As Schaerr suggested, appointing amici (friends of the court) more frequently, especially for politically sensitive cases, could provide greater protection.
Insufficient Congressional Oversight: Despite its constitutional responsibility, Congress lacks real-time access to information about FISA activities. Phil Kiko testified that "committees have received information in response to reporting requirements that are months and sometimes a year old, years old, this information is useless."
The Oversight Dilemma
While independent oversight bodies like the PCLOB serve an important purpose, relying solely on unremovable "unbiased" third parties creates its own dangers. Without additional checks, non-elected bodies are open to corruption or capture over time.
Even when functioning properly, the effectiveness of PCLOB must be questioned, given the staggering scale of FISA abuses that occurred under its watch. Despite its existence since 2004, PCLOB failed to prevent the 3 million searches in 2021 or the 85% non-compliance rate identified in audits. This raises a fundamental question: what good is an oversight body that only discovers violations after they have occurred on a massive scale? As the hearing revealed, even with PCLOB in place, violations continued for years without meaningful intervention.
The solution is layered oversight with Congress playing a central role. As Phil Kiko testified, Congress needs "real-time access" to surveillance information, not after-the-fact reports. Unfortunately, as the hearing revealed, too few congressional staffers have the necessary security clearances to conduct proper oversight.
Most importantly, meaningful accountability requires real consequences. Government employees and private citizens who conduct illegal FISA searches should face criminal penalties, including jail time instead of probation. The contrast between these serious constitutional violations and the minimal consequences faced by violators like Clinesmith shows why procedural reforms alone will not change the culture of abuse.
A Path Forward
Section 702 of FISA expires in April 2026, giving Congress a critical opportunity to implement reforms. Based on the hearing testimony, these reforms should include:
A Warrant Requirement: Requiring a warrant for searching Americans' communications in Section 702 databases, with reasonable exceptions for emergencies.
Closing the Data Broker Loophole: Passing legislation like the "Fourth Amendment is Not For Sale Act," which would prevent government agencies from purchasing Americans' data without a warrant.
Strengthening FISC Processes: Expanding the use of amici in FISC proceedings and requiring the inclusion of exculpatory evidence in FISA applications of U.S. citizens.
Enhancing Congressional Oversight: Increasing security clearances for congressional staff and implementing systems for Congress to monitor compliance in near real-time.
Creating Personal Liability: Establishing criminal penalties for officials who abuse surveillance authorities, whether they work for the government or private contractors.
Conclusion
The weaponization of surveillance against American citizens is a constitutional issue, not a partisan one. As the hearing demonstrated, members from both parties recognize the dangers of unfettered government access to our private communications.
The upcoming reauthorization deadline provides a critical opportunity to restore Fourth Amendment protections in the digital age. Without meaningful reform, the pattern of abuse will continue regardless of which party controls the White House. In the words of Chairman Jordan, "We got 12 months from now when we get a chance to go at this issue again... We're going to do everything we can to make sure we have that warrant requirement."
Our constitutional rights demand nothing less.
What do you think? Has FISA been abused by government agencies including the FBI, NSA and CIA—or is this pure partisan politics? Drop your thoughts below.
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