What a morass we have now with regard to the allegations, refutations, and counter-allegations concerning the possibility of intelligence community “wiretapping” of Donald Trump or his associates before the election and after it. At this point, we have an allegation by President Trump that Obama wiretapped the Trump Tower. Now before people go off on Trump prematurely, let me say that the word “wiretapping” is the commonly used popular term for any kind of “spying” or surveillance. Trump was not being too technical, but we all get the point. Second, he said Obama did it, but lest we get too picky, yes, we all by now know that the president cannot order surveillance requests to a court, but since they go to some agency the president’s name is often used to represent his administration. OK, we have that. Now let’s get down to the substance.
First, an agency, particularly the Justice Department, can apply to a FISA Court (Foreign Intelligence Surveillance Court) for a warrant to “listen” to “conversations” or other communications between certain kinds of people. The request comes if the agency believes some activity is occurring or has occurred. But what kind of activity and what is the standard for getting a warrant. The activity in this case would have been possible communications between Russian officials. The standard is “probable cause.” But it is not the usual cause one finds in criminal cases. Here there are two possible grounds for Probable Cause: (1) the person sought to be surveilled is an “agent of a foreign power” or (2) the person or group is the foreign power. Here is what the Department of Justice says about applications for those warrants:
Electronic Surveillance Procedures – Subchapter I of FISA established procedures for the conduct of foreign intelligence surveillance and created the Foreign Intelligence Surveillance Court (FISC). The Department of Justice must apply to the FISC to obtain a warrant authorizing electronic surveillance of foreign agents. For targets that are U.S. persons (U.S. citizens, permanent resident aliens, and U.S. corporations), FISA requires heightened requirements in some instances.
- Unlike domestic criminal surveillance warrants issued under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the “Wiretap Act”), agents need to demonstrate probable cause to believe that the “target of the surveillance is a foreign power or agent of a foreign power,” that “a significant purpose” of the surveillance is to obtain “foreign intelligence information,” and that appropriate “minimization procedures” are in place. 50 U.S.C. § 1804.
- Agents do not need to demonstrate that commission of a crime is imminent.
- For purposes of FISA, agents of foreign powers include agents of foreign political organizations and groups engaged in international terrorism, as well as agents of foreign nations. 50 U.S.C. § 1801 (DOJ at https://it.ojp.gov/PrivacyLiberty/authorities/statutes/1286).
Notice that possible criminal activity is not a requirement as it would be in ordinary cases. Several Democratic pundits have alleged that the DOJ procedures and checks are quite elaborate, and on paper they are. But two things also have to be kept in mind: (1) procedures can and have been overridden by political decisions from higher ups–the political appointees–in deciding to apply for a warrant and (2) the standards for getting a warrant are pretty thin, as I said above.
Having said all that what do we know about any applications for surveillance of Donald Trump or his associates? We don’t actually know anything with certainty, despite the very blunt denials by people like James Clapper, and strangely James Comey, apparently if his call that the FBI refute Trump’s claim is in fact a denial. After all, these are political appointees and we do know that such creatures in any administration are apt to defend their political master even after he leaves office, and certainly while in office. Look no further that Watergate, and all the officials in Nixon’s circle who defended him to the last.
There were media reports that a FISA request had been made and rejected in June or July of 2016 and then approved after a re-application in October of 2016. But this too has been denied by political appointees and surrogates. So we have no idea at this point. Or do we?
Where did the information on General Flynn came from that was leaked to the media? Someone had to do it. Someone in government it seems. And likely someone in the intelligence community–unless the Russians did it. I am half joking. Moreover, the communication recorded and later released took place (apparently) in Trump Tower. If so, we now have evidence of at least some surveillance. But I will concede other possible explanations for the sake of argument.
Look, I know I am constantly admonished to trust the process and to trust the “public minded” and “unbiased” officials in charge of all this. I ask, do I have good reason to trust any political figure these days? They are “political animals” and that term, though often used in a more philosophical sense, also can be used to describe politicians who are simply self-interested and even power hungry. In fact, all the “procedures” they extol do not really amount to very much except paper rules if they cannot establish and enforce rules that do force checks to occur. Otherwise we are at the mercy simply of a chain of politically motivated decisions from the top officials down to the lowest level of appointed officials. That is a lot of political layers these days. And when we get to the “career” officials, I am not prepared to give them much more grace in any given situation, since their careers too are in part in the balance if they do not comply. They can also be ignored and marginalized if they disagree. That is not to say that surveillance was approved and engaged in, but that it is by no means impossible in any highly politicized environment, which the DOJ certainly has been for some years now.
How can we move forward? I say let Congress do its investigation. But news media should also run with this and do their job as we ought to expect. But in the long run and structurally, we need a better way to insulate certain offices and reduce the potential politicization of them. Maybe the Attorney General should be elected. That is radical I know, but something to think about. In addition, the FISA courts make me uncomfortable. Yes, we need to have the capability to watch other powers and guard against terrorism. But there may be better ways to accomplish those goals. I am not sure such courts should have any power when a United States citizen is involved. The regular Federal courts it seems should handle those cases. And the Probable Cause standard seems too weak to support a warrant no matter who heard those requests. But I am just ruminating at this point.
In the end, I hope we find out one way or the other. I hope it turns out not to be true, though if that happened, President Trump would certainly take a hit. If any of it were true, it WOULD be a constitutional crisis of epic proportions, worse than the petty actions of the Watergate crowd. Either way, however, I am developing a deep sense of unease about our government and its institutions. If we can’t trust them, the future is not bright.