This may turn on what the meanings of “wiretap” and “order” are.
The hot dispute of the weekend is Donald Trump’s tweets this morning about alleged “wiretapping” by the Obama administration. Some thoughts below.
I don’t think you can view today’s tweets in isolation.
For the past several months (at least) we have lived in a world of non-stop innuendo suggesting that Donald Trump and/or his closest associates are compromised in some way by the Russians
There is no proof, just innuendo attributed to the intelligence community, as I explained in The fact-free Intelligence Community-Media trial of Trump by innuendo:
I don’t know whether Donald Trump or his aides had any improper contacts with Russian Intelligence officers.
Neither do you, or the media. The Intelligence Community might know, but they have provided zero facts either officially or through leaks to prove any improper, much less illegal, conduct took place.
Instead, we have trial by innuendo based on there being “contacts” between Trump campaign aides and Russian intelligence….
In this fact-free environment, imaginations and malicious intentions can run wild. We have round-the-clock media and social media speculation and frenzy throwing around terms like impeachment, treason, and so on.
It is, in some ways, worse than harmful facts, because there is no clear accusation against which to defend, and no factual basis upon which the public can judge.
I can’t prove the innuendo is wrong, because there are no facts to evaluate. I also can’t prove it’s right, because there are no facts to evaluate.
The innuendo based on “contacts” moved into overdrive with the disclosure that Attorney General Jeff Sessions had two “meetings” with the Russian Ambassador (who seemingly has had a “meeting” of one sort or another with dozens if not hundreds of members of Congress).
Those contacts, however, were hardly secretive or suggestive of misconduct. One was at the Republican convention when the Obama administration arranged for dozens of foreign diplomats to attend. The second was at Sessions’ Senate office in the presence of Senate staffers. There has not been, at least as revealed so far, any private one-on-one meetings between Sessions and the Russian Ambassador — but that has not stopped the media frenzy. CNN even suggested, in a backhanded way, that the Ambassador may have been trying to recruit Sessions.
It’s no secret that Trump believes Sessions and others targeted by Democrats and the media have been treated poorly. He is a counter-puncher, and he appeared to punch back via his favorite method, Twitter.
Trump tweeted today that the Obama administration wiretapped him or his campaign (the allegations are not crystal clear, but that seems to be the gist).
A couple of words and phrases jumped out at me.
The first is “[j]ust found out” — which suggests some conveyance of information or newly-found understanding.
While many are attributing Trump’s revelation to a Breitbart News article, we don’t know that (yet) for a fact. Here is the relevant portion of the article, based on this Mark Levin monologue, Mark Levin to Congress: Investigate Obama’s ‘Silent Coup’ vs. Trump:
Drawing on sources including the New York Times and the Washington Post, Levin described the case against Obama so far, based on what is already publicly known. The following is an expanded version of that case, including events that Levin did not mention specifically but are important to the overall timeline.
1. June 2016: FISA request. The Obama administration files a request with the Foreign Intelligence Surveillance Court (FISA) to monitor communications involving Donald Trump and several advisers. The request, uncharacteristically, is denied.
2. July: Russia joke. Wikileaks releases emails from the Democratic National Committee that show an effort to prevent Sen. Bernie Sanders (I-VT) from winning the presidential nomination. In a press conference, Donald Trump refers to Hillary Clinton’s own missing emails, joking: “Russia, if you’re listening, I hope you’re able to find the 30,000 e-mails that are missing.” That remark becomes the basis for accusations by Clinton and the media that Trump invited further hacking.
3. October: Podesta emails. In October, Wikileaks releases the emails of Clinton campaign chair John Podesta, rolling out batches every day until the election, creating new mini-scandals. The Clinton campaign blames Trump and the Russians.
4. October: FISA request. The Obama administration submits a new, narrow request to the FISA court, now focused on a computer server in Trump Tower suspected of links to Russian banks. No evidence is found — but the wiretaps continue, ostensibly for national security reasons, Andrew McCarthy at National Review later notes. The Obama administration is now monitoring an opposing presidential campaign using the high-tech surveillance powers of the federal intelligence services.
5. January 2017: Buzzfeed/CNN dossier. Buzzfeed releases, and CNN reports, a supposed intelligence “dossier” compiled by a foreign former spy. It purports to show continuous contact between Russia and the Trump campaign, and says that the Russians have compromising information about Trump. None of the allegations can be verified and some are proven false. Several media outlets claim that they had been aware of the dossier for months and that it had been circulating in Washington.
6. January: Obama expands NSA sharing. As Michael Walsh later notes, and as the New York Times reports, the outgoing Obama administration “expanded the power of the National Security Agency to share globally intercepted personal communications with the government’s 16 other intelligence agencies before applying privacy protections.” The new powers, and reduced protections, could make it easier for intelligence on private citizens to be circulated improperly or leaked.
7. January: Times report. The New York Times reports, on the eve of Inauguration Day, that several agencies — the Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA), the National Security Agency (NSA) and the Treasury Department are monitoring several associates of the Trump campaign suspected of Russian ties. Other news outlets also report the exisentence of “a multiagency working group to coordinate investigations across the government,” though it is unclear how they found out, since the investigations would have been secret and involved classified information.
8. February: Mike Flynn scandal. Reports emerge that the FBI intercepted a conversation in 2016 between future National Security Adviser Michael Flynn — then a private citizen — and Russian Ambassador Sergey Kislyak. The intercept supposedly was part of routine spying on the ambassador, not monitoring of the Trump campaign. The FBI transcripts reportedly show the two discussing Obama’s newly-imposed sanctions on Russia, though Flynn earlier denied discussing them. Sally Yates, whom Trump would later fire as acting Attorney General for insubordination, is involved in the investigation. In the end, Flynn resigns over having misled Vice President Mike Pence (perhaps inadvertently) about the content of the conversation.
9. February: Times claims extensive Russian contacts. The New York Times cites “four current and former American officials” in reporting that the Trump campaign had “repeated contacts with senior Russian intelligence officials. The Trump campaign denies the claims — and the Times admits that there is “no evidence” of coordination between the campaign and the Russians. The White House and some congressional Republicans begin to raise questions about illegal intelligence leaks.
10. March: the Washington Post targets Jeff Sessions. The Washington Post reports that Attorney General Jeff Sessions had contact twice with the Russian ambassador during the campaign — once at a Heritage Foundation event and once at a meeting in Sessions’s Senate office. The Post suggests that the two meetings contradict Sessions’s testimony at his confirmation hearings that he had no contacts with the Russians, though in context (not presented by the Post) it was clear he meant in his capacity as a campaign surrogate, and that he was responding to claims in the “dossier” of ongoing contacts. The New York Times, in covering the story, adds that the Obama White House “rushed to preserve” intelligence related to alleged Russian links with the Trump campaign. By “preserve” it really means “disseminate”: officials spread evidence throughout other government agencies “to leave a clear trail of intelligence for government investigators” and perhaps the media as well.
In summary: the Obama administration sought, and eventually obtained, authorization to eavesdrop on the Trump campaign; continued monitoring the Trump team even when no evidence of wrongdoing was found; then relaxed the NSA rules to allow evidence to be shared widely within the government, virtually ensuring that the information, including the conversations of private citizens, would be leaked to the media.
The other thing that jumped out at me from Trump’s tweets was that in most instances he put words wire tap (or a variant) in quotation marks. Which might indicate that “wire tap” was a colloquialism for whatever the surveillance was.
The Andy McCarthy post referenced in the Breitbart article, from January, is worth a read, FISA and the Trump Team. The sub-headline is: “The idea that FISA could be used against political enemies always seemed far-fetched. Now it might not be.”
In response to Trump’s tweets, today everyone has become an instant expert on FISA (The Foreign Intelligence Surveillance Act of 1978). The defense of Obama is that it would be impossible under FISA for a President to order wiretapping, that could only come from a FISA court. I’ll assume that’s true.
The lack of an “order” from Obama to surveil Trump is the defense by the former president.
“A cardinal rule of the Obama administration was that no White House official ever interfered with any independent investigation led by the Department of Justice,” said Kevin Lewis, a spokesman for Mr. Obama. “As part of that practice, neither President Obama nor any White House official ever ordered surveillance on any U.S. citizen.”
None other than Ben Rhodes, who has admitted that he deliberately mislead the Congress and public about Iran in order to secure the Iran deal, is leading the defense of Obama. It was and is believable to me that Rhodes and others would manipulate the public for Obama, even if never “ordered” to do so.
No President can order a wiretap. Those restrictions were put in place to protect citizens from people like you. https://t.co/lEVscjkzSw
— Ben Rhodes (@brhodes) March 4, 2017
(added via Zero Hedge) That does not mean, however, that there was no wiretap, only that Obama is claiming neither he nor the White House “ordered” it, as tweeted by a former Obama speechwriter:
I'd be careful about reporting that Obama said there was no wiretapping. Statement just said that neither he nor the WH ordered it.
— Jon Favreau (@jonfavs) March 4, 2017
I’m not going to be one of those instant experts on FISA, the general activities of the intelligence community, or the ability of the Obama administration (perhaps with a nod and a wink) to target political opponents.
It’s believable to me that people in the Obama administration or the permanent bureaucracy would target Trump and his campaign in some way. Whether it technically is “wiretapping” and done under FISA seems like a distraction to me.
It’s believable just like it was believable to me, as ultimately was proven, that Lois Lerner and others at the IRS would target the Tea Party and conservatives even though there were years of denials and the law forbade such conduct. Though neither Obama himself nor the White House have been proven to have”ordered” her to do it, it still happened, and I don’t believe Obama’s claim he first read about it in the newspaper.
Full of weasel words. And demonstrably false in case of IRS and Clinton email scandals. https://t.co/OO2Km9hfS9
— Tom Fitton (@TomFitton) March 4, 2017
One last piece of the puzzle, the NY Times reported that in early January as Obama was preparing to leave office, then Attorney General Loretta Lynch signed an order authorizing the wide dissemination of surveillance information throughout the government purportedly to prevent Trump from destroying it (though more likely, to assure leaks):
In its final days, the Obama administration has expanded the power of the National Security Agency to share globally intercepted personal communications with the government’s 16 other intelligence agencies before applying privacy protections.
The new rules significantly relax longstanding limits on what the N.S.A. may do with the information gathered by its most powerful surveillance operations, which are largely unregulated by American wiretapping laws. These include collecting satellite transmissions, phone calls and emails that cross network switches abroad, and messages between people abroad that cross domestic network switches.
The change means that far more officials will be searching through raw data. Essentially, the government is reducing the risk that the N.S.A. will fail to recognize that a piece of information would be valuable to another agency, but increasing the risk that officials will see private information about innocent people.
Attorney General Loretta E. Lynch signed the new rules, permitting the N.S.A. to disseminate “raw signals intelligence information,” on Jan. 3, after the director of national intelligence, James R. Clapper Jr., signed them on Dec. 15, according to a 23-page, largely declassified copy of the procedures.
Note the statement in the Times article:
The new rules significantly relax longstanding limits on what the N.S.A. may do with the information gathered by its most powerful surveillance operations, which are largely unregulated by American wiretapping laws.
According to the NY Times there is surveillance that may not technically be a “wiretap” but might be scooped up by intelligence community surveillance, and then was widely disseminated in the final days of the Obama administration:
In the Obama administration’s last days, some White House officials scrambled to spread information about Russian efforts to undermine the presidential election — and about possible contacts between associates of President-elect Donald J. Trump and Russians — across the government. Former American officials say they had two aims: to ensure that such meddling isn’t duplicated in future American or European elections, and to leave a clear trail of intelligence for government investigators.
Why would Obama seek to preserve information about Trump if there were no information?
Where does this leave us?
This may turn on what the meanings of “wiretap” and “order” are.