Spy vs. Spy vs. Trump
by

Last week’s Obamacare debacle has cost the president a lot of political capital. It has also hugely increased the importance of his campaign promises (including the repeal of Obamacare) and made it harder for him to deal with other political crises.

One of those crises is getting bigger by the day. It’s the mess of conflicting allegations and leaks in response to Mr. Trump’s tweets three weekends ago alleging that he had been “wiretapped” on former president Obama’s orders.

On March 4, the president authored three “tweets” saying that Obama ordered his telephones be tapped before the election and that authorization for the “wiretapping” was turned down once by a court. This came about three months after allegations surfaced that Russian intelligence operatives hacked into DNC and Clinton operative John Podesta’s emails, gave them to WikiLeaks and thus tried to sabotage Hillary Clinton’s campaign. Many reports implied or said outright that the Russian cyberattacks were intended to benefit Trump’s campaign.

Allegations of Mr. Trump’s campaign’s complicity with the Russians arose immediately. Most of the top intelligence officials — even of the Obama administration — have said there was no evidence of such complicity, but that hasn’t deterred the Democratic media axis from continuing to stir that cauldron of calumny.

They have been propelled by a series of leaks coming, apparently from the FBI and other intelligence agencies, possibly including the NSA.

Rep. Devin Nunes (R-Cal), chairman of the House Permanent Select Committee on Intelligence, has been investigating the anti-Trump allegations. His committee has heard testimony from both Adm. Rogers, head of NSA, and FBI Director James Comey.

Comey has cooperated only partially, playing quite cagey. He has said there was no evidence to support the president’s allegation that he or his transition team was wiretapped. That, of course, doesn’t mean that other means of surveillance — including interception by the FBI or NSA — of telephone calls, emails, and text messages between a transition team member and the Russians incidental to regular intelligence collection didn’t happen.

Under the Foreign Intelligence Surveillance Act, every sort of communication between foreign officials and others are intercepted, analyzed, and used intelligence reports to intelligence community leaders and the president. The analyses of such communications are often provided to the congressional “Big Eight” (the chairmen and vice chairmen of the House and Senate intelligence committees and the Republican and Democratic leaders of both houses of Congress).

FISA requires that the interception of any such communications that are with American citizens or “U.S. persons” (anyone in the U.S. who isn’t an agent of a foreign government or suspected of criminal or terrorist activities) be “minimized.” Minimization procedures are prescribed in regulations issued by the attorney general. They used to require that the identities of U.S. persons be “masked” — i.e., redacted from intelligence products — and concealed from people who aren’t allowed to be privy to raw intelligence reports, literally anyone outside from the few analysts and their superiors in NSA.

Former Congressman Pete Hoekstra was the chairman of the House Permanent Select Committee on Intelligence. In a Wall Street Journal op-ed last week, he wrote that he had asked to see raw intelligence reports many times and had been refused because those raw reports weren’t made available to lawmakers, even the “Big Eight.”

About ten days ago, Nunes said there was evidence that the intelligence community had surveilled Trump’s transition team and possibly the president-elect during the transition after the November election. He said he was aware of about a dozen incidents where that occurred and that those incidents included the “unmasking” of peoples’ names.

Last Wednesday, Nunes began blowing the lid off the Obama administration’s actions that were aimed at Trump and his transition team. He told reporters, “There was some level of surveillance activity — perfectly legal — but I don’t think the American people would be comfortable with it.” That is a masterful understatement.

How could surveillance of a presidential transition team and the president-elect himself possibly be legal?

About a week before Mr. Trump’s inauguration, then-attorney general Loretta Lynch issued a new set of regulations governing how the intelligence agencies share intercepted communications collected under FISA and not covered by other federal wiretapping laws.

Lynch’s new regulations materially loosened the limits on what NSA can do with the content of intercepted communications — including satellite phone transmissions, emails, and text messages — that pass through foreign switchboards or computer servers. Lynch thus allowed raw intelligence to flow to the CIA, the FBI, the DEA, and other agencies.

One New York Times report quoted Robert Litt, then-general counsel to the Director of National Intelligence, who, at the time, was James Clapper. Litt said Lynch’s directive was “… simply widening the aperture for a larger number of analysts who will be bound by existing rules.” Perhaps, but it enabled a vastly greater number of people to see the raw intelligence before the names of U.S. citizens — including Trump and his transition team — were masked.

Lynch’s directive also told the NSA to grant “reasonable” requests from other intelligence agencies for access to specific intelligence feeds after the NSA considered how much private information of Americans was disclosed and how embarrassing it would be if that information were leaked.

In short, Lynch increased logarithmically the number of people who could abuse the law to surveil the president-elect and his team and leak the information to friendly media.

Lynch’s directive, issued under her FISA regulatory authority, gave colorable legality to what Nunes implied happened during the period between the November election and Mr. Trump’s inauguration. That is why Nunes said the intelligence collection he is aware of was legal.

Leaks — and other abuses of FISA — continue. Just hours after Nunes’s Wednesday statement, CNN published a report that said it was told by U.S. officials, “The FBI has information that indicates associates of President Donald Trump communicated with suspected Russian operatives to possibly coordinate the release of information damaging to Hillary Clinton’s presidential campaign.” The report went on to say that, according to its “U.S. official” source, “This is partly what FBI Director James Comey was referring to when he made a bombshell announcement Monday before Congress that the FBI is investigating the Trump’s campaign’s ties to Russia, according to one source.”

There are two possible reasons for CNN to publish that story. One is that CNN made it up in another fake news report. More likely is that someone in the FBI leaked it to CNN with the intention of counteracting Nunes’s statement that there had been surveillance of Mr. Trump and his team.

Former Senator Christopher Bond (R-MO) was the vice chairman of the Senate Select Committee on Intelligence and led the Senate rewrite of FISA when the law was last redone in 2007-2008. He told me, “If someone from the FBI said that [what CNN reported] they should be fired and perhaps prosecuted under the felony statutes” covering such conduct.

Bond said during the FISA rewrite, then-House Speaker Nancy Pelosi (D-Cal) wanted to apply FISA’s restrictions to all legally authorized intercepts of communications. That would have restricted the president’s constitutional authority to conduct intelligence operations. Eventually, Pelosi’s lawyers relented.

Thus, then-President Obama retained — and President Trump now retains — some power to authorize intelligence collection actions outside FISA. But it is a clear abuse of power to use that authority to spy on political enemies who have no involvement in illegal activities. To restate the obvious, any president-elect and his transition team were doing nothing illegal in contacting foreign leaders and their representatives to create channels of contact to use in the future.

Last Friday, Nunes said that NSA Director Rogers was fully cooperating in his investigation and that he expected to receive more information — possibly including transcripts of conversations — on surveillance of Mr. Trump and his team this week.

The remaining mystery is why the president hasn’t acted himself to clear up the controversy and put it behind him. As president, Mr. Trump holds the authority to compel the intelligence agencies — and the FBI — to disclose to him and to Congress exactly what the Obama administration did, who was responsible, and who received the information, including Mr. Obama himself.

The appearance given by Mr. Trump’s inaction is that he wants to hide something. It’s long past time for him to order the entirety of the surveillance information be disclosed to him and his White House counsel. He can then disclose some or all of that information and end the controversy.

The longer he waits, the more it will appear that he is engaging in a cover-up.

He should clear the air now and get on with the business of the American people he was elected to do.

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