Pres­i­dent doesn’t need Congress to an­swer ques­tion

New Straits Times - - World - WASH­ING­TON

IF Don­ald Trump wants to know whether he was the sub­ject of sur­veil­lance by the United States gov­ern­ment, he may be uniquely po­si­tioned to get an an­swer.

In a se­ries of week­end tweets, the pres­i­dent ac­cused his pre­de­ces­sor, Barack Obama, of or­der­ing wire­taps on his phones but of­fered no proof to back the claim. The White House then called on Congress to in­ves­ti­gate the al­le­ga­tions.

But for­mer gov­ern­ment lawyers say Trump hardly needs Congress to an­swer this ques­tion.

“The in­tel­li­gence com­mu­nity works for the pres­i­dent, so if a pres­i­dent wanted to know whether sur­veil­lance had been con­ducted on a par­tic­u­lar tar­get, all he’d have to do is ask,” said Todd Hin­nen, head of the Jus­tice De­part­ment’s Na­tional Se­cu­rity Di­vi­sion dur­ing the Obama ad­min­is­tra­tion and a Na­tional Se­cu­rity Coun­cil staff mem­ber un­der Ge­orge W. Bush.

The lat­est storm be­gan on Satur­day when Trump tweeted: “Is it le­gal for a sit­ting pres­i­dent to be ‘wire tap­ping’ a race for pres­i­dent prior to an elec­tion? Turned down by court ear­lier. A NEW LOW!”

He fol­lowed up with: “How low has pres­i­dent Obama gone to tap my phones dur­ing the very sa­cred elec­tion process. This is Nixon/Water­gate. Bad (or sick) guy!”

The Jus­tice De­part­ment, not the pres­i­dent, would have the au­thor­ity to con­duct such sur­veil­lance, and of­fi­cials have not con­firmed any such ac­tion.

Through a spokesman, Obama said nei­ther he nor any White House of­fi­cial had ever or­dered sur­veil­lance on any Amer­i­can cit­i­zen.

Obama’s top in­tel­li­gence of­fi­cial, James Clap­per, also said Trump’s claims were false, and a US of­fi­cial said the FBI asked the Jus­tice De­part­ment to re­but Trump’s as­ser­tions.

Why turn to Congress, Trump spokesman Sean Spicer was asked on Mon­day.

“My un­der­stand­ing is that the pres­i­dent di­rect­ing the De­part­ment of Jus­tice to do some­thing with re­spect to an in­ves­ti­ga­tion that may or may not oc­cur with ev­i­dence may be seen as try­ing to in­ter­fere,” Spicer said.

“And I think that we’re try­ing to do this in the proper way.”

Se­na­tor John McCain, chair­man of the Armed Ser­vices Com­mit­tee, said on Mon­day that Trump needed to give more in­for­ma­tion to the Amer­i­can peo­ple and Congress about his wire­tap­ping ac­cu­sa­tions.

“The di­men­sions of this are huge,” McCain said.

“It’s ac­cus­ing a for­mer pres­i­dent of the United States of vi­o­lat­ing the law. That’s never hap­pened be­fore.”

As for the ge­n­e­sis of a pos­si­ble wire­tap, it is pos­si­ble the pres­i­dent was re­fer­ring to the For­eign In­tel­li­gence Sur­veil­lance Act, a 1978 law that per­mits in­ves­ti­ga­tors, with a war­rant, to col­lect the com­mu­ni­ca­tions of some­one they sus­pect of be­ing an agent of a for­eign power.

That can in­clude for­eign am­bas­sadors or other for­eign of­fi­cials who op­er­ate in the US whose com­mu­ni­ca­tions are mon­i­tored as a mat­ter of rou­tine for coun­ter­in­tel­li­gence pur­poses.

The war­rant ap­pli­ca­tion process is done in secret in a clas­si­fied process. But, as pres­i­dent, Trump has the au­thor­ity to de­clas­sify any­thing. And were such a war­rant ex­isted, he could move to make it pub­lic as well.

If the pres­i­dent de­mands to know what hap­pened, “the Jus­tice De­part­ment can de­cide what’s ap­pro­pri­ate to share and what’s not”, said Amy Jef­fress, an­other for­mer Obama ad­min­is­tra­tion na­tional se­cu­rity lawyer.

The Jus­tice De­part­ment ap­plies for the war­rants in a onesided process be­fore judges of the se­cre­tive For­eign In­tel­li­gence Sur­veil­lance Court.

Per­mis­sion is granted if a judge agrees that there’s prob­a­ble cause that the tar­get is an agent of a for­eign power.

Trump also could have been re­fer­ring to wire­tap­ping au­tho­rised un­der the Om­nibus Crime Con­trol and Safe Streets Act of 1968.

The Jus­tice De­part­ment can ob­tain a war­rant for that sur­veil­lance by con­vinc­ing a judge that there’s prob­a­ble cause to be­lieve the tar­get has com­mit­ted or is com­mit­ting a crime.

The White House turned on Sun­day to Congress — which is al­ready in­ves­ti­gat­ing ties be­tween Trump as­so­ciates and Rus­sians — for help find­ing ev­i­dence to sup­port his as­ser­tions.

For Congress, get­ting to the bot­tom of this should not be dif­fi­cult, said Dan Jones, a for­mer Se­nate in­ves­ti­ga­tor and pres­i­dent of the Penn Quar­ter Re­search and In­ves­ti­ga­tions Group.

“It’s a know­able, ‘yes or no’,” Jones said.

If the an­swer is there was no such war­rant, he said, the next step would be to ask the pres­i­dent why he made the claim. “That in­for­ma­tion would then be in­ves­ti­gated to find out if it’s right or wrong.”

It’s ac­cus­ing a for­mer pres­i­dent of the United States of vi­o­lat­ing the law. That’s never hap­pened be­fore.

SE­NA­TOR JOHN MCCAIN Armed Ser­vices Com­mit­tee chair­man

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