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.

How Should We Respond to Russia's Violation of the Intermediate Nuclear Forces Treaty?

From the low readership on my last post on Russia's violation of the Intermediate Nuclear Forces Treaty, there is not a great deal of interest here about this issue.  Too bad!  this is important!  Eat your national security spinach!

Michael Krepon of the Simpson Center has a very useful and thoughtful post on the issue.  He concludes that Russia is in material breach of the Treaty, that the violation is not militarily significant, that it would be a mistake for the U.S. to either pull out of the Treaty or to increase its deployment of tactical nuclear weapons in Europe, but that there are steps that we can take (and by and large, are taking) to reassure our allies.  Here is a small portion of this thoughtful analysis:

The SSC-8 is a minor accessory to the nuclear wardrobe of the Russian Federation. The United States possesses more than enough nuclear firepower to make the rubble bounce in Russia in the event of a nuclear war. The rationale behind the SSC-8’s deployment does not seem to be linked to war-fighting requirements. Instead, Moscow appears intent to soften up NATO, demonstrate opposition to U.S. forward-deployed missile defenses, and drive a wedge between the United States and allied or friendly states in Europe. The best rejoinders are those that shore up these ties while demanding the removal and destruction of existing SSC-8s as well as the re-imposition of the INF Treaty’s monitoring at production facilities where these missiles have been built.

.  .  .

The smartest moves are to double down on the European Reassurance Initiative and to open up a diplomatic track alongside the military preparedness track – which is how the INF Treaty came about. The smart 21st-century counters to Cold War-era nuclear posturing involve precision-guided, stealthy, standoff conventional weapons. The United States holds these high cards, and can share more of them — including extended range, air-launched cruise missiles that are not covered by the INF Treaty — with NATO allies if the Kremlin continues to deploy Euro-missiles. This prospect, along with the prospect of more theater missile defense deployments in Europe, might persuade Vladimir Putin to return to compliance with the INF Treaty.

The entire piece is well worth reading.  Perhaps its greatest value for the non-expert, is that it displays the sophisticated and layered analysis that is essential  to a na analysis of a national security problem.

A Primer on the Intermediate-Range Nuclear Forces ("INF") Treaty

With the resignation of National Security Adviser Michael Flynn, and the reports of several FBI investigations of alleged Trump campaign contacts with Russian intelligence officers, there is heightened interest in all aspects of our relationship with Russia.  I previously discussed concerns about a Russian spy boat off the coast of the United States.  This post will focus on reports of Russian violation of the Intermediate-Range Nuclear Forces Treaty, also known to cool people in the know as the "INF" Treaty.

First some background on the treaty itself.  During the 1970's, the USSR began  to develop and deploy an intermediate  nuclear armed missile known as the SS-20, which improved the Soviet's ability to reach European targets.  In response, NATO began to deploy is own intermediate nuclear missiles (ground-based cruise missiles and the Pershing II missiles.  NATO also sought to reach an agreement with the Soviets, but the Soviets were not receptive until Mikhail Gorbachev became the Soviet General Secretary. The US and NATO had several non-negotiable demands: that the Treaty be global in scope (and not just apply to missiles in Europe) and that it not apply to British and French missiles.Ultimately, the USSR and the US agreed to a worldwide elimination of all ground-launched intermediate missiles (defined as missiles with a range of 300-3400 miles).  This resulted in the elimination of existing missiles on both the US and USSR sides, but did not effect the French or British arsenals.

Russia is not subject to the Treaty as a successor State to the USSR, and it has shown some signs of buyers remorse.  It has noted its concern that nations around it--such as France, the UK and China, are not subject to these restrictions.  It has also argued that the development of a missile defense system in Europe has changed the strategic balance, and this might make termination of the INF Treaty inevitable.  Nonetheless, Russia has not taken steps to terminate the Treaty.

The recent controversy about alleged Russian violations of the INF Treaty have been years in the making.  In July 2014, the United States first officially declared that Russia was in violation of the Treaty by testing a new cruise missile.  The Russians denied that this was the case, and alleged that the U.S. itself was in violation of the INF Treaty (by the missiles it uses as targets for the missile defense system, among others).  The US formally initiated the dispute mechanisms in the Treaty (the first time this was done), and the parties met to discuss the violations in November 2016.  The New York Times has now reported that officials believe that Russia has gone beyond mere development of the missile and has begun to produce enough cruise missiles to deploy them.

Almost all that is occurring is highly classified and is happening behind closed doors.  We don't even know the Russian explanation about why the new missile does not violate the Treaty.  Nonetheless, this issue is raising several sets of questions?

First, what is Russia attempting to accomplish by developing a cruise missile capable of hitting targets in Europe?  I can only offer speculation, but there are some obvious possibilities.  We know that Russia is very concerned about the development of even a modest missile defense system in Europe.  Russia is also concerned about the fighter-aircraft-based nuclear weapons in the NATO arsenal.  It may well be that Russia is developing the missile as a bargaining chip to be used in a negotiation to get rid of both the aircraft-based nuclear weapons and the missile defense system.  Alternatively, the missile system may be part of its strategic efforts to put a wedge between US and European countries on a security issues.

Second, what are the possible US responses?  One option, of course, would be to terminate the agreement, and build a new cruise missile system to counter the Russian systems.  The downside to this option is that it will require the costly development of a missile not even on the drawing board, with little apparent strategic advantage.  I can think of much ways to speed our defense dollars.  Because the treaty only applies to ground-launched systems, the US could also deploy air and ship based systems.  Finally, of course, the US could use this dispute to negotiate a broader agreement that could, for example, place limits on tactical nuclear weapons in Europe.

The real question on everyone's mind, of course, is what President Trump will do on this issue.  To be fair to President Trump, the Russia-U.S. meeting on this issue only took place in November, and both the department of Defense and the Department of State may still be developing recommendations for the President.  In light of the swirling taint of scandal regarding his campaigns relationship with Russia, however, it needs to develop a response soon.

It is in the interest of the United States to keep the INF Treaty in place.  The elimination of an entire type of weapon system was a huge accomplishment, and a new arms race concerning nuclear weapons in Europe would hardly be to our advantage.  Still, the Treaty violations, if verified, cannot go unanswered.

A good resource on this issue, by the way is an Issue Paper issued by the Arms Control Association.

Russia's Interference in Elections Is Not New

Andrew Weiss of the Carnegie Endowment has an interesting op-ed in the Wall Street Journal today that makes the point that Russian interference in the elections of other countries is nothing new.  For example the KGB used similar tactics in the 1980’s in an effort to defeat deployment of U.S. intermediate range nuclear missiles in Europe:

The Soviets did everything they could to encourage and manipulate the grass-roots European peace movement that had risen up in opposition to the new weapons.
According to declassified CIA reports, Moscow used a web of front groups, secret payments to activists and articles placed in the press. The Russians also carefully conveyed propaganda themes to sympathetic media outlets, peddled disinformation and produced damaging forgeries of official U.S. and NATO documents.
.  .  .
The KGB and its allied intelligence services also tried to tilt elections in the U.S., Western Europe and the Third World. At the height of the debate over the U.S. missile deployment in Europe, the Soviets organized what Chancellor Helmut Kohl’s government called a “massive propaganda campaign of interference in West German affairs” to force his ouster in the country’s March 1983 election. But the Soviet effort backfired. The crude Soviet “press commentaries” and staged “workers’ rallies” horrified Kohl’s party and even the opposition Social Democrats.

As Weiss notes, Russia is now likely to use similar tactics in several upcoming European elections:

With elections also coming up this year in Germany, the Netherlands and perhaps Italy, the Kremlin’s willingness to use its KGB-style tool kit has put intelligence services across the continent on alert. In Germany, for instance, a high-profile January 2016 fake-news story about an attempted sexual assault on a Russian-German teenager by Middle Eastern refugees, which was also spread by Russian Foreign Minister Sergei Lavrov, stoked popular anger toward Chancellor Angela Merkel—probably Mr. Putin’s most prominent foreign foe.

There is one remarkable difference, however, between Russia’s electoral interference in the past and what we are seeing today.  In the past, the efforts were largely designed to bolster the left in elections.  Today, the efforts instead are designed to bolster the far right.  This is a fascinating change, which reflects a return to Russia’s traditional, pre-Revolution strategy in the World, but that is a post for another day.

Read the full post here.