OPINION:
The “third rate burglary” of the Democratic National Committee’s offices at the Watergate hotel in 1972 was meant to spy on the Democratic presidential campaign. Now we’re beginning to understand how a Democratic administration pried into the 2016 Republican Campaign with the assistance of the CIA, the FBI, and the Department of Justice. The Democratic Party’s media wing tries to cover the spying and pretends that it uncovered dirt.
The stories in The Washington Post and The New York Times (Jan. 6, 11, 19 and March 1, 2017) accusing Donald Trump’s campaign of having collaborated with Russia’s interference in the 2016 election were reports of U.S. intelligence officials’ conclusions concerning intercepted electronic communications of Mr. Trump’s campaign.
Note well: The conclusions about Trumpian improprieties are opinions. The U.S government’s wiretapping of the opposition’s presidential campaign is a fact, established by the very officials who reported their conclusions about it to the press. Government surveillance of the opposition’s presidential campaign is precisely the high crime of which Richard Nixon was accused.
The U.S. government’s surveillance of the political opposition to help defeat that opposition is no more acceptable today than it was 40 years ago. But, unlike the Watergate burglars, the Intelligence officials who wiretapped the Trump campaign have an argument that they acted according to law: namely the 1978 Foreign Intelligence Surveillance Act (FISA), as amended in 2008.
Congress passed that law at the insistence of the FBI and NSA, in cooperation with what one might call the Establishment Left (ACLU et al.). Officials of these agencies had been sued by left-wing activists whose communications with Communist governments during the Vietnam War they had intercepted. These officials balked at exercising the president’s inherent authority to wiretap foreigners, lest the Americans involved in them take offense at being found in contact with them.
For their own protection they demanded that every wiretap of foreigners be pre-cleared by a judge’s order. FISA established a court that would hear and approve applications for wiretaps in secret and, of course, ex parte. It also said that information incidentally acquired about “U.S. persons” could not be used.
Constitutionalists opposed FISA as an unconstitutional dilution of inherent presidential powers by the judiciary. Moreover, judges could not add or subtract from the judgments of intelligence officials about whether a target should be surveilled.
As part of the Senate Intelligence Committee that drafted FISA, I joined in opposing it on constitutional grounds. But I also argued that FISA’s principal danger lay in precisely the reason why the agencies wanted it: to be a rubber stamp. Shielded by FISA warrants, I said, officials would be tempted to bend the law’s restrictions and wiretap for partisan purposes.
The American Bar Association staged a debate on this subject at the University of Chicago law school between myself and then-Professor Antonin Scalia. He stressed the importance of the FBI and NSA working without fear, and could not imagine the agencies’ leadership casting their lots with the party in power. As it happened, changes in the agencies’ culture, and the 2008 FISA amendments, proved Mr. Scalia an optimist.
Specifically, although Section 702 bars the government from “intentionally” targeting a U.S. resident or any American located outside of the country, so long as the agencies make a case that a particular surveillance operation targets a foreigner, any and all information gathered on Americans is unintentional by definition. Hence FISA has enabled much and restricted little. The FISA court has refused only a dozen applications out of some 34 thousand. The Act also compels communication companies to make available telephone and email data.
In June 2016 the FBI requested a court order concerning Russia’s alleged hacking of DNC emails, on the theory that it involved the Trump campaign. The court said no. The agencies “wiretapped” nonetheless, producing whatever data is the basis for the stories that “high intelligence officials” gave to The Times, Post, etc. In October 2016, however, the NSA stopped all its Section 702 collection, having determined that it had “inadvertently” trespassed onto Americans’ rights.
As NSA was coming to this conclusion, the Justice Department asked for another FISA warrant on the Trump campaign, and got it, this one apparently on the basis of the “Trump dossier” that had been compiled by Fusion research with the help of the wife of FBI official Bruce Ohr. This served to lend a color of legality — if no one looks too closely — to the not-so incidental stuff that the agencies had gathered on Mr. Trump since July without a FISA warrant.
Moreover, though FISA requires that the identities of American “incidental” intelligence targets be “masked,” Obama intelligence officials “unmasked” them, and the intelligence, to the media.
This is Watergate all over again, and more. Officials used government power to influence the result of a presidential election, and revealed U.S. communications intelligence to the press. There are laws against this. These officials are not being held accountable.
• Angelo M. Codevilla is professor emeritus of international relations at Boston University
Please read our comment policy before commenting.