Posts Tagged ‘FISA’

Trying to Make Sense of #Obamagate Wiretapping

Monday, March 6th, 2017

The latest controversy began, as so many seem to, with a President Trump tweet:

My first thought was “Eh, Trump’s talking out his ass.” Which happens from time to time.

But then further reports came in, and the Obama Administration talking points started to take the form of “Ah, well, actually, here, have this carefully worded denial that dances around the main issue.”

Here’s Andrew McCarthy in National Review (hardly the most Trump-friendly outlet on the right) dissecting the non-denial denials about what actually happened:

To summarize, reporting indicates that, prior to June 2016, the Obama Justice Department and FBI considered a criminal investigation of Trump associates, and perhaps Trump himself, based on concerns about connections to Russian financial institutions. Preliminary poking around indicated that there was nothing criminal involved. Rather than shut the case down, though, the Obama Justice Department converted it into a national-security investigation under the Foreign Intelligence Surveillance Act (FISA). FISA allows the government, if it gets court permission, to conduct electronic surveillance (which could include wiretapping, monitoring of e-mail, and the like) against those it alleges are “agents of a foreign power.” FISA applications and the evidence garnered from them are classified – i.e., we would not know about any of this unless someone had leaked classified information to the media, a felony.

In June, the Obama Justice Department submitted an application that apparently “named” Trump in addition to some of his associates. As I have stressed, it is unclear whether “named” in this context indicates that Trump himself was cited as a person the Justice Department was alleging was a Russian agent whom it wanted to surveil. It could instead mean that Trump’s name was merely mentioned in an application that sought to conduct surveillance on other alleged Russian agents. President Trump’s tweets on Saturday claimed that “President Obama . . . tapp[ed] my phones[,]” which makes it more likely that Trump was targeted for surveillance, rather than merely mentioned in the application.

In any event, the FISA court reportedly turned down the Obama Justice Department’s request, which is notable: The FISA court is notoriously solicitous of government requests to conduct national-security surveillance (although, as I’ve noted over the years, the claim by many that it is a rubber-stamp is overblown).

Not taking no for an answer, the Obama Justice Department evidently returned to the FISA court in October 2016, the critical final weeks of the presidential campaign. This time, the Justice Department submitted a narrowly tailored application that did not mention Trump. The court apparently granted it, authorizing surveillance of some Trump associates. It is unknown whether that surveillance is still underway, but the New York Times has identified – again, based on illegal leaks of classified information – at least three of its targets: Paul Manafort (the former Trump campaign chairman who was ousted in August), and two others whose connection to the Trump campaign was loose at best, Manafort’s former political-consulting business partner Roger Stone, and investor Carter Page. The Times report (from mid-January) includes a lot of heavy breathing about potential ties between the Trump campaign and Russia; but it ultimately concedes that the government’s FISA investigation may have nothing to do with Trump, the campaign, or alleged Russian efforts to interfere in the U.S. election by hacking e-mail accounts.

Trump’s tweets on Saturday prompted some interesting “denials” from the Obama camp. These can be summarized in the statement put out by Obama spokesman Kevin Lewis:

A cardinal rule of the Obama Administration was that no White House official ever interfered with any independent investigation led by the Department of Justice. As part of that practice, neither President Obama nor any White House official ever ordered surveillance on any U.S. citizen. Any suggestion otherwise is simply false.

This seems disingenuous on several levels.

First, as Obama officials well know, under the FISA process, it is technically the FISA court that “orders” surveillance. And by statute, it is the Justice Department, not the White House, that represents the government in proceedings before the FISA court. So, the issue is not whether Obama or some member of his White House staff “ordered” surveillance of Trump and his associates. The issues are (a) whether the Obama Justice Department sought such surveillance authorization from the FISA court, and (b) whether, if the Justice Department did that, the White House was aware of or complicit in the decision to do so. Personally, given the explosive and controversial nature of the surveillance request we are talking about – an application to wiretap the presidential candidate of the opposition party, and some of his associates, during the heat of the presidential campaign, based on the allegation that the candidate and his associates were acting as Russian agents – it seems to me that there is less than zero chance that could have happened without consultation between the Justice Department and the White House.

Second, the business about never ordering surveillance against American citizens is nonsense. Obama had American citizens killed in drone operations. Obviously, that was not done in the U.S. or through the FISA process; it was done overseas, under the president’s commander-in-chief and statutory authority during wartime. But the notion that Obama would never have an American subject to surveillance is absurd.

Third, that brings us to a related point: FISA national-security investigations are not like criminal investigations. They are more like covert intelligence operations – which presidents personally sign off on. The intention is not to build a criminal case; it is to gather information about what foreign powers are up, particularly on U.S. soil. One of the points in FISA proceedings’ being classified is that they remain secret – the idea is not to prejudice an American citizen with publication of the fact that he has been subjected to surveillance even though he is not alleged to have engaged in criminal wrongdoing.

Snip.

To be clear, there does not seem to be any evidence, at least that I know of, to suggest that any surveillance or requests to conduct surveillance against then-candidate Donald Trump was done outside the FISA process.

Nevertheless, whether done inside or outside the FISA process, it would be a scandal of Watergate dimension if a presidential administration sought to conduct, or did conduct, national-security surveillance against the presidential candidate of the opposition party. Unless there was some powerful evidence that the candidate was actually acting as an agent of a foreign power, such activity would amount to a pretextual use of national-security power for political purposes. That is the kind of abuse that led to Richard Nixon’s resignation in lieu of impeachment.

Moreover, it cannot be glossed over that, at the very time it appears the Obama Justice Department was seeking to surveil Trump and/or his associates on the pretext that they were Russian agents, the Obama Justice Department was also actively undermining and ultimately closing without charges the criminal investigation of Hillary Clinton despite significant evidence of felony misconduct that threatened national security.

This appears to be extraordinary, politically motivated abuse of presidential power.

So as far as I can tell:

  1. The Obama Administration attempted to conduct wireless wiretapping involving Donald Trump, and was rejected by the FISA court,
  2. The Obama Administration sought, and was granted, a FISA application to conduct wireless wiretapping involving Donald Trump associates in the final month of a heated Presidential campaign, and
  3. This information was illegally leaked to the press.

That’s not a nothingburger.

The question at this point is not “Was a felony committed?”, it’s “How bad a felony was committed, who ordered it, and for what reason?”

More extensive discussing of the legal issues involved here.

Public Not So Hot on Unlimited Surveillance State

Wednesday, June 12th, 2013

Or so says a CBS poll on the vast NSA/FISA/PRISM monitoring program. Republicans and Independents were pretty strongly against the government reading their emails and seizing their phone records. Democrats, on the other hand, were evenly split; evidently half of them do want Big Brother monitoring their every move…at least when the person in the White House has a (D) after their name.

A less granular Pew poll show more support for the NSA being able to “monitor everyone’s email. Like any poll (much less a Pew poll), I’d take it with a large grain of salt, especially given how ridiculously over-weighted with Democrats this poll is:

Fisking Obama’s NSA Conference (Part 1)

Tuesday, June 11th, 2013

Obama gave his speech on the NSA scandal a few days ago. I wanted to fisk it because it’s eminently fiskable, and I don’t think that anyone else has done it (though Scott Shackford over at Reason took a stab).

Comments in blockquotes are from Obama’s press conference, the rest are mine (along with referenced quotes to others).

I’m going to take one question.

One whole question? How generous of you! Not only did George W. Bush hold far more press sessions than Obama, I seem to remember him answering a lot more questions at each one as well.

And then remember, people are going to have opportunity to — I’ll also answer questions when I’m with the Chinese president today.

“One, Barack Obama is terrified of the press and refuses to face them on his own. Two, out of fear he is using foreign leaders as props to keep the press from getting out of hand, and to force them to ask questions having nothing to do with his scandals.”

So I don’t want the whole day to just be a bleeding press conference.

How about just one day you have a press conference where you actually answer all the questions reporters have on Benghazi, the IRS, Pigford, and the NSA?

But I’m going to take Jackie Calmes’s question.

Ah, yes, Jackie Calmes. Even among the Obama-philic staff of The New York Times, Colmes stands out for consistently pushing the Obama line, be it the desirability of Keynesian pump-priming deficit spending over fiscal responsibility, Obama’s credentials as a pragmatist, or claiming ObamaCare will reduce the deficit, Obama can always count on Jackie to lend him a helping hand! Imagine Bush only taking one question at a press conference, then calling on Rush Limbaugh or Dennis Miller.

Q: Mr. President, could you please react to the reports of secret government surveillance of phones and Internet? And can you also assure Americans that the government—your government doesn’t have some massive secret database of all their personal online information and activity?

“Could you reassure.” Funny, I thought it was the job of reporters to ask questions to elicit information, not “assurance.” What a nice, slow pitch over the middle of the plate.

PRESIDENT OBAMA: Yeah. You know, when I came into this office, I made two commitments that are more than any commitment I make: number one, to keep the American people safe;

I’m sure Ambassador Stephens deeply appreciated those efforts during the last few hours of his life.

and number two, to uphold the Constitution. And that includes what I consider to be a constitutional right to privacy and an observance of civil liberties.

Funny, Mr. Obama’s fervor to uphold the Constitution (especially such “troublesome” sections as the Second and Tenth Amendments) has seemed fairly underwhelming to non-liberal observers, especially compared to his enthusiasm for expanding the size and scope of the federal government, or even reducing his golf handicap.

Now, the programs that have been discussed over the last couple days in the press

Well, there’s a pretty vague formulation. Why not just come out and say “The NSA FISA Prism intercept program?” Is this just an inadvertently vague phrasing, or is it deliberate in order to provide plausible deniability if proven false? Given the extensive revisions the Benghazi talking points underwent, I’m going to go with “deliberate.”

are secret in the sense that they’re classified, but they’re not secret in the sense that when it comes to telephone calls, every member of Congress has been briefed on this program.

Funny, but congressional Republicans have said otherwise, and that they had no idea of the breadth and depth of NSA’s Prism program. Democratic Senator Jeff Merkley (OR) says the same thing. And Obama mouthpiece Jay Carney walked back the “every member” claim. Even so, notice the “when it comes to telephone calls” qualifier, which suggests large swathes of other types of data collection they haven’t been briefed on.

With respect to all these programs, the relevant intelligence committees are fully briefed on these programs.

I can’t actually ding that as a lie, since the intelligence committee people who have talked about it (including Marco Rubio) have sounded supportive of it, even the “hand over all your metadata for all phone customers” portion.

These are programs that have been authorized by broad, bipartisan majorities repeatedly since 2006.

The general NSA program yes. “Obtain the records for every phone call made in America?” Not so much. Also don’t forget that as Senator, Obama himself railed against the government conducting “a fishing expedition through every personal record or private document.” Of course, seizing every record isn’t a fishing expedition, it’s a net-drag operation designed to capture all the fish. And George W. Bush’s NSA director says the program has expanded under Obama.

And so I think at the outset, it’s important to understand that your duly elected representatives have been consistently informed on exactly what we’re doing.

Some representatives, and not “constantly.”

Now, let — let me take the two issues separately. When it comes to telephone calls, nobody is listening to your telephone calls.

This statement is almost certainly false, given that some Americans are almost certainly covered by one of the 1,769 classified wiretap orders filed in 2012.

That’s not what this program’s about. As was indicated, what the intelligence community is doing is looking at phone numbers and durations of calls. They are not looking at people’s names, and they’re not looking at content.

This is almost certainly a lie. I can’t imagine there’s not a name-matching algorithm operating even at this very early stage of metadata sifting.

But by sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism.

And the NSA’s idea of “people who might engage in terrorism” is “everyone who owns a Verizon phone?”

If these folks — if the intelligence community then actually wants to listen to a phone call, they’ve got to go back to a federal judge, just like they would in a criminal investigation. So I want to be very clear. Some of the hype that we’ve been hearing over the last day or so — nobody’s listening to the content of people’s phone calls.

The strawman set alight here is so large that Nicolas Cage should be standing underneath it screaming “No, not the bees!” First, as Shackford noted in his piece, ” Nobody said that the program was about listening to telephone calls.” Second, just because you’re not actually listening in, doesn’t mean that you can’t glean data from the metadata, including sensitive and potentially blackmail-worthy data. And, as the IRS scandal shows, there’s no reason for the public to believe that Obama Administration officials won’t abuse such data if they get their hands on it.

There’s that word “fully” again. And there’s a great deal of evidence that court has become little more than a rubber stamp, turning down a whopping .03% of the requests submitted.

And so not only does that court authorize the initial gathering of data, but I want to repeat, if anybody in government wanted to go further than just that top-line data and wanted to, for example, listen to Jackie Calmes’s phone call, they’d have to go back to a federal judge and — and — and indicate why, in fact, they were doing further — further probing.

Again with the listening to phone calls. Handwaving.

Now, with respect to the Internet and emails, this does not apply to U.S. citizens, and it does not apply to people living in the United States. And again, in this instance, not only is Congress fully apprised of it, but what is also true is that the FISA Court has to authorize it.

Given that the NSA intercepts 1.7 billion emails a day, I find it hard to believe that they’re all to or from foreigners, unless an usually high percentage of them are Nigerian princes.

So in summary, what you’ve got is two programs that were originally authorized by Congress, have been repeatedly authorized by Congress. Bipartisan majorities have approved (on them ?). Congress is continually briefed on how these are conducted. There are a whole range of safeguards involved. And federal judges are overseeing the entire program throughout.

For this summary of lies and half-truths, see the fisking of the previous lies and half-truths.

And we’re also setting up — we’ve also set up an audit process when I came into office to make sure that we’re, after the fact, making absolutely certain that all the safeguards are being properly observed.

Which is it? You’ve set it up, or you’re going to set it up? And we should trust you for that same sterling oversight you’ve observed for Benghazi, Pigford, and the IRS? Speaking of “audit processes.” Bad choice of words there, O…

Now, having said all that, you’ll remember when I made that speech a couple of weeks ago

No, as a matter of fact, I don’t. You give so many speeches, and say so little in each of them.

about the need for us to shift out of a perpetual war mindset.

Translation: “I’m a 9/10 Democrat.” How Obama’s love of drone strikes, and his decision to intervene in the Libyan civil war (and now, possibly, the Syrian civil war as well) tie into shifting out of a “perpetual war mindset” remains unclear. As does how we get Al-Qaeda, the Taliban, and various other terrorist groups (some backed by the Islamic Republic of Iran) to stop killing Americans. It would probably be quite easy to “shift out of a perpetual war mindset” if fighters for radical Islam weren’t waging perpetual war on us.

I specifically said that one of the things that we’re going to have to discuss and debate is how were we striking this balance between the need to keep the American people safe and our concerns about privacy, because there are some trade-offs involved.

So far the “trade offs” of your foreign policy seem to be “keep fighting long enough to avoid being accused of losing in Iraq and Afghanistan, but not doing enough in either place to actually win.”

And I welcome this debate.

Given how thin-skinned you are, how negatively you react to people criticizing you, and how poorly you performed debating Mitt Romney, I rather doubt that.

And I think it’s healthy for our democracy. I think it’s a sign of maturity, because probably five years ago, six years ago, we might not have been having this debate. And I think it’s interesting that there are some folks on the left, but also some folks on the right who are now worried about it who weren’t very worried about it when it was a Republican president. I think that’s good that we’re having this discussion.

You know what debate we weren’t having 5 or 6 years ago? “Why is the IRS targeting the Administration’s political opponents?” And we weren’t having that debate because George W. Bush wasn’t using the IRS to target his political opponents. Unlike you.

We also weren’t having this debate because we really believed that Bush was committed to fighting the war on terror. Unlike you. Moreover, we weren’t having this debate back when there were 22 classified wiretap orders because that didn’t seem excessive. Now that there are 1,769 classified wiretap orders, under an Administration known for abusing its power, it’s a lot more urgent concern. We didn’t have that debate under a Republican because he didn’t have the documented pattern of abuse of power you do. Was it short-sighted of our representatives to sign off on the more expansive measures of the Patriot Act? Obviously so, though how could they have known your abusive administration was coming down the pike so soon?

But I think it’s important for everybody to understand, and I think the American people understand, that there are some trade-offs involved. You know, I came in with a health skepticism about these programs.

Sure you did…right up until you realized you were in charge of them. See also: Lord Acton.

My team evaluated them. We scrubbed them thoroughly. We actually expanded some of the oversight, increased some of the safeguards.

How convenient that everything is secret so we can’t evaluate these “improvements” your team has made.

But my assessment and my team’s assessment was that they help us prevent terrorist attacks.

Maybe. But how many did they prevent, and at what cost? Which of those 1,769 secret wiretap orders were more effective than the previous 22?

And the modest encroachments on privacy that are involved in getting phone numbers or duration without a name attached and not looking at content — that on, you know, net, it was worth us doing.

I’m sure that Obama feels that any encroachment’s on other people’s privacy are entirely acceptable, just as he feels spending more of other people’s money on higher spending and taxes is just fine and dandy. And I don’t think that gathering phone and email data for every American is “worth doing.” Or constitutional.

That’s — some other folks may have a different assessment of that. But I think it’s important to recognize that you can’t have a hundred percent security and also then have a hundred percent privacy and zero inconvenience. You know, we’re going to have to make some choices as a society.

No one (at least among conservatives or libertarians) believes that you can reach 100% security, because human beings are inherently imperfect creatures. But we’re not asking for “100% privacy,” we’re demanding the level of freedom and privacy guaranteed by the Constitution of the United States of America. And the TSA seems to be closing in on 100% inconvenience for 0% effectivety. 100% privacy and 100% security are both unreachable, but 100% secret surveillance of a free nation’s phone calls and emails is intolerable.

And [all?] I can say is, is that in evaluating these programs, they make a difference [to] anticipate and prevent possible terrorist activity. And the fact that they’re under very strict supervision by all three branches of government and that they do not involve listening to people’s phone calls, do not involve reading the emails of U.S. citizens or U.S. residents, absent further action by a federal court, that is entirely consistent with what we would do, for example, in a criminal investigation.

Both the scandal and the leak of same proves that the supervision isn’t “very strict.”

Once again Obama stands up his “listening to every phone call” and “reading every email” strawmen to give them another pummeling. And I severely doubt that any police department in any city has ever sworn out a warrant that said “give me the phone records for every call in [for example] New York City over the last month.” This is the sort of abuse that can only be carried out by the vast, unaccountable, black budget national security state. Worse still, your Administration’s unwillingness to name and confront the threat posed by radical Islam has made us all less safe still.

I think, on balance, we — you know, we have established a process and a procedure that the American people should feel comfortable about. But again, this — these programs are subject to congressional oversight and congressional reauthorization and congressional debate. And if there are members of Congress who feel differently, then they should speak up.

They are.

And we’re happy to have that debate. OK.

Joe the Plumber certainly remembers how “happy” you and your supporters are to have “debates.” Funny how you and your supporters willingness to abuse and leak government information was already on display even before you were elected. We should have taken that as a sign.

That ends the fisking of Obama’s answer to Calmes’ question. This is already so long I think I’ll go ahead and post it, and save the fisking for Obama’s answer to the other question he allowed to a later post.

FISA/NSA/PRISM/IRS/Etc. Midday Obama Scandal Roundup for June 7, 2013

Friday, June 7th, 2013

The torrent of Obama scandal information is flooding the news is something to behold. In contrast to the tiny drops of Benghazi information the MSM would begrudgingly dole out last year, every day seems to bring a new outrage about how the Obama Administration is trampling on the rights of American citizens. I wish they would put 1/10th the effort of snooping on innocent Americans into tracking and deporting illegal aliens as required by law.

Some links:

  • How PRISM works, using the NSA’s own slides.
  • How the NSA lies with numbers. “We only issued 1,789 requests for warrentless wiretaps last year…that just happened to cover every phone and data provider in America.” Plus that number was just 21 in 2009.

  • NSA’s Verizon request targeted Americans, not foreigners. “This is [an] indiscriminate dragnet. Say what you will about warrantless wiretapping, at least it was targeted at agents of Al Qaeda. This includes every customer of Verizon Business Services.”
  • “And when we swear up and down, cross our hearts and hope to die, that the NSA does no domestic spying on Americans, what we actually mean is that there’s an awful lot of it.”
  • So why does #NSA’s #PRISM use the Dark Side of the Moon logo? “All that you touch, all that you see…”

    The eye-on-the-pyramid scheme came from the Great Seal of the United States – it’s on the back of the dollar bill – and is still beloved of conspiracy theorists all over the world. It’s meant to be the all-seeing eye of God, but it’s also commonly associated with freemasonry, the occult and a shadowy New World order presided over by the Illuminati. To deploy it in a logo for a creepy-sounding spy agency simply justifies the paranoia of people who think the world is run by lizard-shaped aliens. David Icke’s next podcast will write itself.

  • The IRS political timeline.
  • The New York Times softens its editorial on Obama within hours of publishing it. Bet they never did that for an editorial critical of Bush…
  • The NSA scandal has even hit the sports pages: “LeBron James and his friends should be worried right now, and not just because the government is tracking their phone calls.”
  • The ACLU is shocked, SHOCKED that Obama is reading your email.
  • Hat tips: Ace, Insta, others.