As Donald Trump unleashed a tirade of tweets accusing his predecessor of wiretapping Trump Tower during the election campaign, he might have inadvertently dealt a serious blow to surveillance policy on US soil as a whole.
Terrible! Just found out that Obama had my “wires tapped” in Trump Tower just before the victory. Nothing found. This is McCarthyism!
— Donald J. Trump (@realDonaldTrump) March 4, 2017
Trump’s claim, for which he provides no concrete evidence, hinges on three important questions: Did the Obama administration really wiretap Trump Tower? If so, how? And would such a wiretap be legal?
Trump asked the third question himself.
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!
— Donald J. Trump (@realDonaldTrump) March 4, 2017
As many experts have pointed out, the answer to the last inquiry could ultimately backfire on Trump.
If Obama requested a wiretap on Trump’s communications, he would have to do so through the Foreign Intelligence Surveillance Act. FISA established a “secret court” that independently issues warrants for wiretaps, which means the Obama administration would first have to present probable cause.
If such probable cause existed and was recognized by the FISA court, it would mean there was strong reason to suspect that Trump was in some way colluding with Russia during his campaign. That would only serve to bolster Trump’s opposition, which in recent days has attacked the new administration for its shady ties with Russian dignitaries.
Trump’s national security advisor Michael Flynn was forced to resign when it was discovered that he and the Russian ambassador to the US discussed sanctions prior to Trump’s inauguration. Attorney General Jeff Sessions was found to have lied during his confirmation hearing about speaking to the Russian Ambassador while he was a Senator during the campaign. American law enforcement and intellgience agencies are still investigating possible blackmail by Russian officials of Trump’s campaign chairman Paul Manafort.
In two of those three high-profile investigations, Flynn and Manafort, US authorities learned of possible collusion with Russians through intercepted call transcripts. Much like Trump’s wiretap, those transcripts would likely be the result of a warrant issued under FISA.
Changing tides
The Republican Party, which Trump now leads, has long been a staunch proponent of FISA and its offspring, the Patriot Act and the Freedom Act. FISA was enacted 1978, and the Patriot Act expanded executive surveillance powers to combat terrorism shortly after the September 11, 2001 attacks. The Patriot Act expanded FISA to include terrorism on behalf of groups not specifically backed by a foreign government. That includes US citizens suspected of terrorism.
Somewhat ironically, prior to Trump’s latest accusations against Obama, his administration elected not to reform internet surveillance laws, citing national security. Portions of FISA will expire at the end of this year unless Congress reauthorizes them. These provisions must be reauthorized every four years and were reauthorized by the Obama administration, although with a few added restrictions put in place by the Freedom Act in 2015.
Now that these laws have been turned against the current administration, Republicans might well do an about-face on controversial surveillance-versus-privacy issues.
4/ Republicans who have defended surveillance powers are now critical of it especially following Flynn’s resignation https://t.co/bRVcxF9jlF pic.twitter.com/PgYLhfj1bQ
— Justin Hendrix (@justinhendrix) March 4, 2017
FISA and the Patriot Act were leveraged by the NSA and other agencies to justify bulk interception and mass surveillance programs like PRISM and Upstream. These secret programs collected messaging and web traffic data from millions of people both in and out of the United States. Former NSA contractor Edward Snowden leaked their existence in 2013 to an outraged public.
The Trump administration has been caught out primarily by intercepted phone calls and not internet communications. FISA covers all telecommunication surveillance, however, so any effort at reform could affect both media. Surveillance under FISA and the Patriot Act is not a strictly partisan issue, but Republicans coming out against it in defense of Trump could drastically alter how law enforcement and intelligence agencies gather information.
Several provisions of FISA and the Patriot Act still need to be reauthorized by Congress before the end of the year. If the tide continues to turn against Republicans, we could see the party change course. Congress could reign in post-9/11 government surveillance powers by reforming or failing to reauthorize those provisions. They could conceivably go a step further by introducing new legislation that limits spying on US citizens performed by law enforcement and intelligence agencies.
