Did President Obama spy on the Trump campaign? It sure as hell looks like it.
Right now, Congress is in the process of crafting a reauthorization of Sec. 702 of the Foreign Intelligence Surveillance Act (FISA) – the same authority that may have been used to spy on former Trump campaign chairman Paul Manafort, staffer Carter Page and possibly even Trump himself. Although we don’t have any evidence in the public domain of Obama spying on Trump, and regular FISA orders may have been used to spy on Manafort and Page, these issues are serious and in need of immediate explanation by former Obama Administration officials. The issues are serious and raise the possibility that government authorities spying on American citizens may have been used for purely partisan political purposes at the highest levels.
Somehow, the Trump Administration has put out the message that the same authorities that were possibly used to spy on candidate Donald J. Trump himself, are being supported by President Donald J. Trump.
Section 702 of FISA is up for reauthorization this year because Congress set the law to expire on December 31, 2017. Before the enactment of this statute, to engage in intelligence surveillance, generally, the government had to obtain a court order finding there was probable cause to believe that an individual was acting as an agent of a foreign power. Section 702 rendered many of these elements unnecessary, because of the “backdoor search” loophole that allowed searches of data collected on American citizens without a warrant.
The way Section 702 works is that the FBI or NSA will apply for certification from a so-called “FISA Court.” This is not a court in the sense that most Americans think of because these proceedings are in secret and only one side can present. In addition, the court does not approve individual targets, they only broadly approve limited government procedures. So, the process is akin to a single judge approving thousands of warrants at once based simply on a review of the government’s procedures around when they can search someone’s home. There is no jury and only a federal judge and a government attorney present at a hearing. This court rarely says no to a government request and the target virtually never knows that they were the subject of surveillance. There is no right to appeal and the public is not informed of the proceeding. This process does not resemble justice in any way, because of the secrecy and one-sided nature of the proceeding.
The problem is that despite the fact that the government is supposedly “targeting” foreigners, this process results in thousands of Americans’ international communications being sucked up and stored in a database. It is hard to prove that all international communications are stored, though all are probably scanned under the governments “Upstream” program that was created as a tool to intercept telephone and Internet traffic using the Internet backbone.
The NSA, CIA, and FBI then exploit what has been called a “backdoor search loophole” to search through this database to try to get information specifically about Americans without getting a warrant or any individual approval from a court.
Although you can’t target Americans under 702, you can target a foreigner then collect information about Americans. Right now, the government can sweep up and store the communications of American citizens with little oversight. Section 702 has no requirement that the government must show that an individual has engaged in criminal activity to be surveilled. In 2014, the Washington Post reported that NSA intercepted data was used to gather up far more data on individuals who were not even the targets of surveillance. “Ordinary Internet users, American and non-American alike, far outnumber legally targeted foreigners in the communications intercepted by the National Security Agency from U.S. digital networks, according to a four-month investigation by the Washington Post. Nine of 10 account holders found in a large cache of intercepted conversations, which former NSA contractor Edward Snowden provided in full to the Post, were not the intended surveillance targets but were caught in a net the agency had cast for somebody else.” The Washington Post also found that nearly half of the files contained information about an individual in the US. Now we read of members of the Trump campaign being the subject of surveillance.
Section 702 of FISA would likely have been a valuable tool for both former FBI Director James Comey and Special Counsel Robert Mueller as they investigated Russian influence in the American presidential election. Indeed, these authorities could have been used to investigate alleged Russian ties to the campaign of Donald Trump.
In the early stages of the investigation, before they had a factual basis for an active investigation, existing law would have allowed the CIA, NSA or FBI to search through a database of collected data pursuant to Section 702 for so-called “intelligence” purposes to capture email, text messages or phone calls made by Trump campaign officials with foreign nationals regardless of whether they were engaged in collusion or other communications about campaign activities with foreigners.
This collection could include conversations with not just Russian officials targeted under Section 702, but also activists, businessmen, or journalists targeted under the law. The results of these searches could include intimate, proprietary, or even sensitive political conversations which would have been available to FBI Director Comey or Special Investigator Mueller to use.
Indeed, it is possible that the FBI has now accessed sensitive, intimate conversations of Trump campaign officials without any cause to believe these individuals committed a criminal act. This information could be used to assist virtually any investigative fishing expedition, or even as coercion to force individuals to assist in the investigation. Although we don’t have concrete evidence, and because the law currently allows data collection, I worry that the Obama Administration may have had some political motivations to search the database collected under Section 702. Because these programs are opaque, and because former Obama Administration officials have not spoken directly to this issue, this is conjecture and we don’t have concrete evidence that this has happened. That being said, the circumstantial evidence is strong.
The New York Times reported on May 6, 2017, that a draft with reforms “was part of a discussion at a Monday closed-door meeting convened by the Judiciary Committee chairman, Representative Robert W. Goodlatte of Virginia, according to the congressional staff member. On Tuesday, Mr. Goodlatte said publicly that changes would be necessary because ‘there’s broad bipartisan support for reform.’” Reportedly, some lawmakers are considering tightening Section 702 to require the FBI and other agencies from searching through the Section 702 database without a warrant based on probable cause for “criminal suspects.” This limitation would have been easy to evade in this case since Director Comey and Special Investigator Mueller would simply say that one of their purpose of the search was “counterintelligence” and did not pertain to a known criminal suspect.
The only true fix would be an across the board requirement that any agency gets a warrant based on probable cause before searching for the information about an American – regardless of whether they say their purpose is intelligence or criminal. That would prevent the use of these authorities for political purposes or for the purpose of targeting Americans. With the current controversies over the constant leaking of information by administration officials and Congress, it is shocking that Rep. Devin Nunes (R-CA) and President Trump have not come out in support to these common-sense reforms.
According to a blockbuster CNN report on September 18, 2017, “the government snooping continued into early this year, including a period when Manafort was known to talk to President Donald Trump.” It is stunning that the Obama Administration approved warrants on a Trump campaign official and that information has been secret until now. This refers to a general FISA order and not a Sec. 702 authority, yet it shows that the government is prone to abusing spying authorities.
It is perfectly appropriate for Special Counsel Robert Mueller to investigate Russian interference in the last presidential election, but it is not proper for the investigation to creep into territories that don’t directly implicate areas that don’t have anything to do with that investigation. The worry of many is that the authorities given to the federal government to combat terrorism and foreign interference in American politics have been used to investigate common crimes and circumvent the requirements of the Fourth Amendment. The secretive nature of the FISA process and the fact that information has been leaked to the press is severely compromising the Trump Administration in doing their job. With some common sense reforms, the process can better balance the rights of all Americans and balance the need for authorities to combat terrorism.
Section 702 of FISA is likely unconstitutional on its face and a violation of the Bill of Rights, yet some common sense reforms would remove the most egregious provisions of existing law. It may be time for a serious investigation to be conducted by Congress into the abuse of these authorities and the possible misuse of government power that has lead to the recent disclosures of information that has painted many former Trump campaign officials as potential lawbreakers.
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