Sunday, March 5, 2017

More Thoughts About Trump's Tweets About Alleged Wiretapping

Wow, what a wild ride caused by our Tweeter-in-chief.  In the last day, I have had more time to reflect, and also have received questions about law surrounding national security wiretapping that I thought I should answer here.

First, some basic information about national security wiretapping.  The current law distinguishes two categories of electronic surveillance. If the target of our surveillance is a foreign target located overseas, there is no need for a warrant.  This should not be a surprise.  When no U.S. person is involved and we are listening to conversations overseas, there is no reason to insist on the protections of a court and warrant.  In most cases, we are not listening because of a counter-intelligence or counter-terrorism reason--we simply want to know what those darn foreigners are doing.  Under the law, no warrant is required for such surveillance as long as there is no substantial likelihood that it will acquire communications with a U.S. person.

If the surveillance is occurring in the US or is directed toward a U.S. person (or there is a substantial likelihood that conversations with a US person will be acquired), however, the Foreign Intelligence Surveillance Act requires a warrant by the FISA Court.  The standard for issuing this warrant is that there is probable cause to believe that the target is a "foreign power" or an agent of a "foreign power." An Ambassador to the U.S. located in the Us would be monitored using such a warrant.

For both types of surveillance, U.S. persons that are not the target of the surveillance might, from time to time, have their communications acquired.  The law requires that these communications be "minimized."  In most cases, this means that the identity of the US person will be hidden from all further dissemination of the intelligence, but there is an exception:  the name can be used when it is necessary to understand the foreign intelligence information in the report.

So what does this mean here?  It is highly likely that the US uses these authorities to eavesdrop on communications made by the Russian Ambassador and other Russian officials.  If Trump campaign officials (such as Flynn) communicated with these officials, their conversations will be acquired as well despite the fact that none of these officials were targeted for surveillance.  Given that the counter-intelligence import of the communication was that the Russian officials were speaking to senior members of a Presidential campaign, their identities would not be hidden in any reporting.  David Kris, the former Assistant Attorney General for National Security explains this well in this post about Michael Flynn.

If any Trump officials were targeted for eavesdropping, a FISA warrant would have been required, and the existence of such a warrant suggests that a court was convinced that there was probable cause that these officials were acting as agents of a foreign government--which would be a big deal.  Huge, actually.

As I said in my previous post, I do not think there was such a warrant, and the accounts to the contrary in the press don't ring true.  Since that time, the New York Times is reporting that FBI Director James Comey asked the Department of Justice to publicly reject Trump's assertion that Presidnet Obama ordered the tapping of the phones at Trump Tower.

Second, here some further thoughts on this bizarre event.  It strikes me that these wild accusations need to put in the context of previously outrageously false assertions made by Donald Trump.  Examples of wild and false accusations made by Trump in the past include his claims that President Obama was born outside the U.S,  and that Senator Cruz's father was involved in the assassination of Robert Kennedy.  This is sadly, typical behavior by this man, and he seems not to have suffered any consequences for making such wild and false accusations.

I think there are two possibilities at play here: either Trump really believed each of these accusations based on the flimsiest of evidence, or he is cynically using these accusations to distract the American people and the media from matters Trump would rather not discuss.  After all, the tweet storm on wiretapping took place right after Attorney General Sessions was forced to recuse himself from the Russia matter.  What better way to change the narrative.

Both of these possibilities could be true, but I am most disturbed by the first possibility.  If Trump is willing to go public with wild accusations based on little evidence, how will he respond when a right wing commentator makes an accusation against a foreign government?   If he will act as impulsively as he has done here, I fear for our national security.

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