Did Obama spy on Trump?

Un­fet­tered au­thor­ity and un­trace­able se­crecy made it pos­si­ble

The Washington Times Weekly - - Commentary - By An­drew P. Napoli­tano

The ques­tion of whether for­mer Pres­i­dent Obama ac­tu­ally spied on Pres­i­dent Trump dur­ing the 2016 pres­i­den­tial cam­paign and tran­si­tion has been tan­ta­liz­ing Wash­ing­ton since Pres­i­dent Trump first made the al­le­ga­tion nearly two weeks ago. Since then, three in­ves­ti­ga­tions have been launched — one by the FBI, one by the House of Rep­re­sen­ta­tives and one by the Sen­ate. Are the in­ves­ti­ga­tors chas­ing a phan­tom, or did this ac­tu­ally hap­pen? Here is the back story. Mr. Obama would not have needed a war­rant to au­tho­rize sur­veil­lance on Mr. Trump. Mr. Obama was the pres­i­dent and as such en­joyed au­thor­ity un­der the For­eign In­tel­li­gence Sur­veil­lance Act (FISA) to or­der sur­veil­lance on any per­son in Amer­ica, without sus­pi­cion, prob­a­ble cause or a war­rant.

FISA con­tem­plates that the sur­veil­lance it au­tho­rizes will be for na­tional se­cu­rity purposes, but this is an amor­phous phrase and an am­bigu­ous stan­dard that has been the fa­vorite ex­cuse of most mod­ern pres­i­dents for ex­tra­con­sti­tu­tional be­hav­ior. In the early 1970s, Pres­i­dent Richard Nixon used na­tional se­cu­rity as a pre­text to de­ploy­ing the FBI and CIA to spy on stu­dents and even to break in to the of­fice of the psy­chi­a­trist of Daniel Ells­berg, one of his tor­men­tors.

FISA was en­acted in the late 1970s to force the fed­eral gov­ern­ment to fo­cus its sur­veil­lance ac­tiv­i­ties — its do­mes­tic na­tional se­cu­rity-based spy­ing — on only those peo­ple who were more likely than not agents of a for­eign gov­ern­ment. Be­cause FISA au­tho­rizes judges on the For­eign In­tel­li­gence Sur­veil­lance Court to make rules and es­tab­lish pro­ce­dures for sur­veil­lance — es­sen­tially law­mak­ing — in se­cret, the public and the me­dia have been largely kept in the dark about the na­ture and ex­tent of the statute and the le­gal and moral ra­tio­nale for the fed­eral gov­ern­ment’s spy­ing on ev­ery­one in the United States.

The mass spy­ing that these judges have ruled FISA au­tho­rizes is di­rectly counter to the word­ing, mean­ing and pur­pose of FISA it­self, which was en­acted to pre­vent just what it has in fact now un­leashed.

We now know indis­putably that this se­cret FISA court — whose judges can­not keep records of their own work and have their pock­ets and brief­cases checked by guards as they en­ter and leave the court­house — has per­mit­ted all spy­ing on ev­ery­one all the time.

The FISA court only hears lawyers for the gov­ern­ment, and they have convinced it that it is more ef­fi­cient to cap­ture the dig­i­tal ver­sions of ev­ery­one’s phone calls, texts, emails and other dig­i­tal traf­fic than it is to force the gov­ern­ment — as the Con­sti­tu­tion re­quires — to fo­cus on only those who there is rea­son to be­lieve are more likely than not en­gag­ing in un­law­ful acts.

When FISA was writ­ten, tele­phone sur­veil­lance was a mat­ter of wire­tap­ping — in­stalling a wire onto the tar­get’s tele­phone line, ei­ther in­side or out­side the home or busi­ness, and lis­ten­ing to or record­ing in real time the con­ver­sa­tions that were au­di­ble on the tapped line.

To­day, the Na­tional Se­cu­rity Agency (NSA) has 24/7 ac­cess to the main­frame com­put­ers of all tele­com providers and all com­puter ser­vice providers and to all dig­i­tal traf­fic car­ried by fiber op­tics in the United States. The NSA has had this ac­cess pur­suant to FISA court or­ders is­sued in 2005 and re­newed ev­ery 90 days. The FISA court has based its rul­ings on its own es­sen­tially se­cret con­vo­luted logic, never sub­jected to public scru­tiny. That has re­sulted in the uni­ver­sal sur­veil­lance state in which we in Amer­ica now live. The NSA has never de­nied this.

Thus, in 2016, when Mr. Trump says the sur­veil­lance of him took place, Mr. Obama needed only to ask the NSA for a tran­script of Mr. Trump’s tele­phone con­ver­sa­tions to be pre­pared from the dig­i­tal ver­sions that the NSA al­ready pos­sessed. Be­cause the NSA has the dig­i­tal ver­sion of ev­ery tele­phone call made to, from and within the U.S. since 2005, if Mr. Obama last year wanted tran­scripts of Mr. Trump’s calls made at any time, the NSA would have been duty-bound to pro­vide them, just as it would be re­quired to pro­vide tran­scripts of Mr. Obama’s calls to­day if Mr. Trump wanted them. But if Mr. Obama did or­der the NSA to pre­pare tran­scripts of Mr. Trump’s con­ver­sa­tions last fall un­der the pre­text of na­tional se­cu­rity — to find out whether Mr. Trump was com­mu­ni­cat­ing with the Rus­sians would have been a good ex­cuse — there would ex­ist some­where a record of such an or­der. For that rea­son, if Mr. Obama did this, he no doubt used a source on which he’d leave no fin­ger­prints. En­ter James Bond. Sources have told Fox News that the Bri­tish for­eign sur­veil­lance ser­vice, the Gov­ern­ment Com­mu­ni­ca­tions Head­quar­ters, known as GCHQ, most likely pro­vided Mr. Obama with tran­scripts of Mr. Trump’s calls. The NSA has given GCHQ full 24/7 ac­cess to its com­put­ers, so GCHQ — a for­eign in­tel­li­gence agency that, like the NSA, op­er­ates out­side our con­sti­tu­tional norms — has the dig­i­tal ver­sions of all elec­tronic com­mu­ni­ca­tions made in Amer­ica in 2016, in­clud­ing Mr. Trump’s. By by­pass­ing all Amer­i­can in­tel­li­gence ser­vices, Mr. Obama would have had ac­cess to what he wanted with no Obama ad­min­is­tra­tion fin­ger­prints.

Thus, when se­nior Amer­i­can in­tel­li­gence of­fi­cials de­nied that their agen­cies knew about this, they were prob­a­bly be­ing truth­ful. Adding to this omi­nous sce­nario is the fact that three days af­ter Trump’s inau­gu­ra­tion, the head of GCHQ, Robert Han­ni­gan, abruptly re­signed, stat­ing that he wished to spend more time with his fam­ily.

I hope the in­ves­ti­ga­tions of Mr. Trump’s al­le­ga­tion dis­cover and re­veal the truth — what­ever it is. But the les­son here is ter­ri­bly se­ri­ous. We face the gravest threat to per­sonal lib­erty since the Alien and Sedi­tion Acts of 1798 pro­scribed crit­i­cism of the gov­ern­ment. We have an un­elected, un­named, un­ac­count­able elite group in the in­tel­li­gence com­mu­nity ma­nip­u­lat­ing the pres­i­dent at will and pos­sess­ing in­ti­mate, de­tailed knowl­edge about all of us that it can re­veal. We have statutes that have given the pres­i­dent un­con­sti­tu­tional pow­ers that have ap­par­ently been used. And we have judges on se­cret courts fa­cil­i­tat­ing all this as if the Con­sti­tu­tion didn’t ex­ist.

For how much longer will we have free­dom?

By by­pass­ing all Amer­i­can in­tel­li­gence ser­vices, Mr. Obama would have had ac­cess to what he wanted with no Obama ad­min­is­tra­tion fin­ger­prints.

An­drew P. Napoli­tano, a for­mer judge of the Su­pe­rior Court of New Jersey, is a con­trib­u­tor to The Wash­ing­ton Times. He is the au­thor of seven books on the U.S. Con­sti­tu­tion.

IL­LUS­TRA­TION BY

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