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.

Some Thoughts About Trump's Tweeted Allegations About Wiretapping

Our tweeter-in-chief is at it again.  In a series of tweets this morning, President Trump alleged that President Obama "had my 'wires tapped' in Trump Tower."  Although the press have asked the White House for more elaboration, nothing has been forthcoming.  Indeed, it appears most of his staff were themselves surprised at the tweet storm.

It has been well over six hours, and the White House has still not elaborated on the allegations or offered any evidence that they are true.  If they fail to do so, this will only confirm the dangerously impulsive nature of this President.  It suggests that at 6 am on some future morning, he will impulsively order military action based on an article in Breitbart News.

I have no doubt that Trump made these accusations as a way to divert attention from the ever increasing evidence of contacts between Russian officials and his campaign.  His modis operandi (which has worked well up to now) is to deny, deceive and divert.  Ironically, however, if his allegations are true, they actually reinforce  the fact that there is a serious concern by counter-intelligence officials that members of the Trump Campaign were working as agents of the Russian State.

Let me explain.  Presidents do not have any authority to order a wiretap.  Instead, any domestic wiretap for counter-intelligence purposes requires (1) review and work by career prosecutors in the Department of Justice's National Security Division, (2) approval by the Attorney General, and (3) approval by the Foreign Intelligence Surveillance Act ("FISA") Court.  Approval of a FISA application requires the court find probable cause that the target of the surveillance be a "foreign power" or an "agent of a foreign power."  In other word, a court would only have ordered a wiretap at Trump Tower if there was probable cause that the folks at Trump Tower were agents of the Russian Government.

To be clear, I seriously doubt that there was such a wiretap.  Indeed, senior law enforcement officials in the Obama Administration deny that there was any such wiretap.  Most likely, Trump made these allegations after reading a post on the Breitbart News site. Indeed, some of the specific details alleged in that Breitbart News piece are repeated in Trump's tweets (such as the allegation that the FISA court had initially denied a wiretap), which strongly suggests that Trump's tweet storm was based on the article and not any formal briefing.  And the discussion of the FISA warrants in the article really don't ring true to any of us actually familiar with the process.  But if there was such a wiretap, it suggests that law enforcement and intelligence officials had probable cause that the Trump Campaign was acting as an agent of the Russian government.

Jack Goldsmith On The President's Review Group Report on NSA

Former Bush Administration attorney Jack Goldsmith offers his reactions to the President's Review Group recommendation.  His bottomline is that while he doesn't agree with all of the recommendations, he thinks that President Obama should embrace most of them:

Pre-Snowden, the USG faced few constraints in its collection and analysis other than what the law imposed and what its large budget permitted.  Within these constraints, the USG could focus almost solely on the national security benefit side of communications surveillance, for there were few costs to it.  However, after Snowden’s revelation of the NSA’s extraordinarily broad, robust and varied methods for collection and analysis of communications information, both at home and abroad, NSA collection programs are now very costly along many dimensions, and the USG faces many tradeoffs.  Once revealed, the government must balance the security benefits of NSA activities against credible and vociferous privacy concerns at home, against diplomatic protests abroad, and against significant potential economic fallout for U.S. firms’ global business.  Relatedly, the government must credibly address the extraordinary reputational and trust damage done to the United States and the NSA, so that it can find the support, at home and abroad, to continue its core national security mission.

.  .  .

 That basic approach is (1) to seek whenever possible to ensure transparency and proportionality in what NSA does, (2) to guarantee that NSA’s methods are cost-justified from the perspective of security gains and privacy intrusions and business harm, and, relatedly, (3) to ensure that the NSA (and USG) deploy the least privacy-intrusive means of collection and analysis.  Sometimes this approach yields recommendations for significant substantive reform.  More often, the proposed reforms are jurisdictional, procedural, and accountability-enhancing, and are designed to promote the legitimacy of USG collection and analysis without making radical changes in the type of intelligence analyses the USG can undertake.  If implemented, the way the USG collects and analyzes data will change, and will be subject to even more forms of review and scrutiny, and greater transparency and proportionality restraints.  But the substance of collection and analysis – including in the most controversial context, bulk meta-data collection and analysis – need not change significantly in light of these proposals.

As a result, and especially because many of the recommendations are highly caveated and couched at a high level of generality, I think the President would be wise to embrace most of them, especially most of the ones pertaining to homeland collection and analysis, and then fight for any objections at the level of detail that the Report leaves untouched or ambiguous.  The proposed reforms will have costs in terms of the speed and stealth of collection, and in terms of money and manpower spent per unit of collection and analysis, and perhaps – though this is far from clear – in terms of national security effectiveness.  These are indeed tradeoffs.  But in a post-Snowden world, the NSA and the USG must now face and bow to tradeoffs far beyond what its budgets impose.  The main goal now is to maintain maximum U.S. security while accommodating these tradeoffs.

Read it all here.  I agree with Jack.  Continuation of the status qua is unacceptable, and the proposed reforms will still allow for a highly effective intelligence community--albeit, perhaps not as effective in some areas.  I also think that the legal underpinning of some of the collection methods--the rule that third party disclosure of data means no reasonable expectation of privacy--is becoming untenable given today's technology.

What do you think?