President Trump escalated the intermittent war with his intelligence agencies on Thursday in a series of Twitter posts that threatened to torpedo a vote in Congress on what spies consider one of their most essential surveillance tools.
Members of Congress were set to vote to reauthorize a controversial law that permits U.S. intelligence to surveil Americans without a warrant when they are detected talking with foreigners overseas who were already under surveillance.
But that law — known by its congressional shorthand, Section 702 — has become tangled up in the sprawling political imbroglio over Russia’s attack on the 2016 election, and Trump resurrected charges that it might have been used to snoop on him.
“This is the act that may have been used, with the help of the discredited and phony dossier, to so badly surveil and abuse the Trump campaign by the previous administration and others?” he wrote.
“House votes on controversial FISA ACT today.” This is the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others?
— Donald J. Trump (@realDonaldTrump) January 11, 2018
Before that he posted: “Disproven and paid for by Democrats “Dossier used to spy on Trump Campaign. Did FBI use Intel tool to influence the Election?” @foxandfriends Did Dems or Clinton also pay Russians? Where are hidden and smashed DNC servers? Where are Crooked Hillary Emails? What a mess!”
Trump’s comments throw together a rat’s nest of related, semi-related and unrelated strands from the story, supporting Republicans’ narrative about a “biased” FBI and Justice Department out to get him and protect Hillary Clinton.
And they follow a simmering feud that Trump has waged with the CIA and other intelligence agencies, from before the time he took office.
The Russia story is Byzantine, but the politics are standard: It is a truth vacuum. Many key questions have no answers and many, if known, are not public — or indeed classified top secret. That gives operators from the president to his critics the ability to fudge and conflate what is and isn’t factual, what details connect to others and what connections are legitimate and what are not.
The question Trump posed, for example — did the FBI use the infamous Russia dossier to ask the Foreign Intelligence Surveillance Court to grant warrants for surveillance of Americans — addresses some of the most secret official information in Washington.
Neither the court nor the intelligence agencies involved would confirm publicly whether there had been any warrants, who they might have addressed, and upon what evidence they might be based.
There have been press reports that touched on these issues, but nary a peep from officialdom to settle the questions finally.
So with no way for anyone to address whether such attacks are factual, there is no way Trump or his supporters, including Rep. Jim Jordan, R-Ohio, can be contradicted.
Moreover, the section of U.S. intelligence law under which surveillance warrants are issued is different from Section 702. That law, from the FISA Amendments Act, addresses the collection that U.S. spies do on foreigners overseas. If the National Security Agency is monitoring a Russian spy within Russia and he gets a call from an American, Section 702 permits U.S. intelligence officers to continue listening without asking a judge for a warrant.
Intelligence community bosses say this capability is an essential part of protecting the U.S. against terrorists and foreign spies. They break their traditional wall of silence in order to talk with journalists and members of Congress in the open about how important they consider it. That’s in part because of how controversial the practice remains for the U.S. government eavesdropping on Americans without a warrant.
For the record, Trump’s administration supports the reauthorization of Section 702. In fact, the White House issued a statement on Wednesday evening — hours before Trump’s tweet — restating its call for members of Congress to vote for its continued use.
Trump’s tweet gave ammunition to opponents of Section 702 who have warned about what they call the prospects for political leaders to abuse it. That spoke to an earlier chapter in this saga in which Washington took a detour about “wiretapping” and “unmasking,” following Trump tweets from March 2017.
Then-FBI Director James Comey and his successor, Christopher Wray, along with Director of National Intelligence Dan Coats, have pleaded with members of Congress not to get caught up in conflating terms and stories about surveillance. American spies use their surveillance powers under strict supervision, they argue, and turning off these authorities would leave the United States blind in places where it needs to keep watch.
“Unmasking” is one example, they argue. When a “U.S. person” is mentioned in official intelligence reporting, the normal practice is for the name — whether of a human being, or a company, or a ship or airplane — to be redacted. Top so-called “consumers” of intelligence, such as top leaders in the FBI or National Security Council, can ask the originators of the report to “unmask” those names.
That’s what may have happened in the White House in the final days of the Obama administration. The FBI had begun a counterintelligence investigation last summer about the Trump camp’s potential connections to the Russians who attacked the 2016 elections. Under Section 702, monitoring Russians overseas, it may have “swept up,” as spies say, some Americans in Trump world if they were in touch with them.
Later, top Obama officials got intelligence reporting about contacts between retired Lt. Gen. Mike Flynn, Trump’s top national security aide, and Russia’s then-ambassador to the U.S. As Flynn later admitted in court documents when he pleaded guilty to lying to the FBI, he and the ambassador discussed Flynn’s request for Moscow not to retaliate against the punitive measures that Obama imposed in retaliation for the election interference.
That wasn’t known publicly in early 2017, but what did emerge was a report in the Washington Post, based on a leak from the White House, that described Flynn’s contact with the ambassador. That angered Trump and the previous Republican critics of Section 702, who complained that political leaders shouldn’t use official reporting to take partisan shots in the press.
Comey and NSA Director Adm. Mike Rogers agreed with members of Congress that such leaks were bad — but they also cautioned against conflating Section 702, which addresses collection on foreigners overseas, and the sections of U.S. law that permit the FBI to surveil a foreign agent — like an ambassador — inside the U.S.
Comey said on Thursday that he hopes members of Congress can break through the politics to vote to reauthorized Section 702 so that aspect of U.S. surveillance remains in effect.
“Thoughtful leaders on both sides of the aisle know FISA section 702 is a vital and carefully overseen tool to protect this country. This isn’t about politics. Congress must reauthorize it,” he tweeted.
As for Trump, he ultimately hewed back to the administration’s position on the bill with a post that concluded his thread on Thursday morning:
“With that being said, I have personally directed the fix to the unmasking process since taking office and today’s vote is about foreign surveillance of foreign bad guys on foreign land. We need it! Get smart!”