Obama Advisor Rhodes Is Wrong: The President Can Order A Wiretap, And Why Trump May Have The Last Laugh
Following Trump’s stunning allegation that Obama wiretapped the Trump Tower in October of 2016, prior to the presidential election, which may or may not have been sourced from a Breitbart story, numerous Democrats and media pundits have come out with scathing accusations that Trump is either mentally disturbed, or simply has no idea what he is talking about.
The best example of this came from Ben Rhodes, a former senior adviser to President Obama in his role as deputy National Security Advisor, who slammed Trump’s accusation, insisting that “No President can order a wiretap. Those restrictions were put in place to protect citizens from people like you.” He also said “only a liar” could make the case, as Trump suggested, that Obama wire tapped Trump Tower ahead of the election.
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
It would appear, however, that Rhodes is wrong, especially as pertains to matters of Foreign Intelligence Surveillance, and its associated FISA court, under which the alleged wiretap of Donald Trump would have been granted, as it pertained specifically to Trump’s alleged illicit interactions with Russian entities.
In Chapter 36 of Title 50 of the US Code *War and National Defense”, Subchapter 1, Section 1802, we read the following:
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801(h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
While (B) seems to contradict the underlying permissive nature of Section 1802 as it involves a United States person, what the Snowden affair has demonstrated all too clearly, is how frequently the NSA and FISA court would make US citizens collateral damage. To be sure, many pointed out the fact that Fox News correspondent James Rosen was notoriously wiretapped in 2013 when the DOJ was investigating government leaks. The Associated Press was also infamously wiretapped in relation to the same investigation.
As pertains to Trump, the Guardian reported as much in early January, when news of the alleged anti-Trump dossier by former UK spy Chris Steele broke in January:
The Guardian has learned that the FBI applied for a warrant from the foreign intelligence surveillance (Fisa) court over the summer in order to monitor four members of the Trump team suspected of irregular contacts with Russian officials. The Fisa court turned down the application asking FBI counter-intelligence investigators to narrow its focus. According to one report, the FBI was finally granted a warrant in October, but that has not been confirmed, and it is not clear whether any warrant led to a full investigation.
Furthermore, while most Democrats – not to mention former president Obama himself – have been harshly critical of Trump’s comments, some such as former Obama speechwriter Jon Favreau was quite clear in his warning to reporters that Obama did not say there was no wiretapping, effectively confirming it:
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
Favreau also urged his twitter followers to read a thread that explicitly suggested the prior existence of FISA-endorsed wiretaps:
Ok you definitely need to read this thread https://t.co/W7CkXjV40f
— Jon Favreau (@jonfavs) March 4, 2017
Additionally, Philip Rucker, the WaPo’s White House bureau chief echoed Favreau’s caveat, namely that the Obama spokesman’s statement does not deny the existence of wiretaps on Trump Tower, only that Obama himself and the Obama White House did not approve them if they did exist.
The Obama statement does not say there was no federal wire tapping of Trump Tower. It only says Obama and White House didn’t order it.
— Philip Rucker (@PhilipRucker) March 4, 2017
Further implying the existence of such a wiretap was David Axelrod, who tweeted today that that such a wiretap could exist but would have “been OK’ed only for a a reason.”
If there were the wiretap @realDonaldTrump loudly alleges, such an extraordinary warrant would only have been OKed by a court for a reason.
— David Axelrod (@davidaxelrod) March 4, 2017
Yet ironically, it was none other than the Trump administration which just earlier this week announced it supports the renewal of spy law which incorporates the FISA court, without reforms: “the Trump administration does not want to reform an internet surveillance law to address privacy concerns, a White House official told Reuters on Wednesday, saying it is needed to protect national security. The announcement could put President Donald Trump on a collision course with Congress, where some Republicans and Democrats have advocated curtailing the Foreign Intelligence Surveillance Act, or FISA, parts of which are due to expire at the end of the year.”
“We support the clean reauthorization and the administration believes it’s necessary to protect the security of the nation,” the official said on condition of anonymity.
The FISA law has been criticized by privacy and civil liberties advocates as allowing broad, intrusive spying. It gained renewed attention following the 2013 disclosures by former National Security Agency contractor Edward Snowden that the agency carried out widespread monitoring of emails and other electronic communications.
In any event, the bottom line here appears to be that with his tweet, Trump has opened a can of worms with two possible outcomes: either the wiretaps exist as Trump has suggested, and the president will use them to attack both the Obama administration and the media for political overreach; or, there were no wiretaps, which as Matthew Boyle writes, would suggest the previous administration had no reason to suspect Trump colluded with a foreign government.
Senator Ben Sasse said as much in his statement issued earlier today:
The President today made some very serious allegations, and the informed citizens that a republic requires deserve more information. If there were wiretaps of then-candidate Trump’s organization or campaign, then it was either with FISA Court authorization or without such authorization. If without, the President should explain what sort of wiretap it was and how he knows this. It is possible that he was illegally tapped. On the other hand, if it was with a legal FISA Court order, then an application for surveillance exists that the Court found credible.
But what is perhaps most important, is that we may know soon enough. As the NYT reported on Saturday afternoon, a senior White House official said that Donald F. McGahn II, the president’s chief counsel, was working on Saturday to secure access to what the official described as a document issued by the Foreign Intelligence Surveillance Court authorizing surveillance of Mr. Trump and his associates.
If and when such a document is made public – assuming it exists of course – it would be Trump, once again, that gets the last laugh.