Mar 07 2017
Major Update: When crafting this long post I neglected to add one more bit of evidence that ties all these actions to the Obama White House (from The Guardian):
The White House is aware of phone calls between retired lieutenant-general Michael Flynn and ambassador Sergey Kislyak, a senior US official told the Associated Press.
It is not clear how the current administration learned of the contacts, although the AP noted that US monitoring of Russian officials’ communication within America is known to be common.
Flynn’s contacts with Kislyak reportedly included several calls on 29 December
This article is dated Jan 13, 2017. So this is clearly the Obama White House. And since it is a communications intercept from the NSA, it is clear the Obama White House was aware of the surveillance. Also note that the US Person is named and then leaked. Unless someone wants to retract this story and its sources, we have clear evidence of the Obama White House monitoring a Trump campaign member – end update
#Obamagate (the use of our nation’s intelligence apparatus by the Obama administration to surveillance then Presidential Candidate Trump and his associates) is exploding. The denizens of the Political Industrial Complex* (PIC) have overplayed their hand in an attempt to create a fictional crisis surrounding now-President Trump. In the process, they exposed a series of truly high crimes.
The resulting legal and political blow back from #Obamagate has the Fake News Media (the propaganda arm of the PIC) actually trying to refute their own prior reporting of facts and sources. This level of unprecedented retreat indicates how seriously exposed the media is, along with current and former high-level officials in the intelligence community, Obama administration, Obama Dept of Justice and even Congress (the most likely source for leaks of this kind).
I want to remove a lot of the misleading and false statements that have arisen in this recent panic-fed retreat. Bring some clarity to the discussion.
Let’s begin with the myth that a President cannot order surveillance without the FISA Court. As some folks know I began my blogging by challenging the NY Times’ attacks on President Bush when the FISA Court changes he implemented were first leaked. The misrepresentation back then was as serious as now, except the Fake News media was trying to claim Bush had broken laws by implementing a more aggressive surveillance program after 9-11 that spied on Americans.
Today, the NY Times and others seem to have forgotten all their reporting from 2005-2007.
Well, some of us have not forgotten. A President can order surveillance as he sees fit (as reported in 2006 by the Washington Times):
A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).
“If a court refuses a FISA application and there is not sufficient time for the president to go to the court of review, the president can under executive order act unilaterally, which he is doing now,” said Judge Allan Kornblum, magistrate judge of the U.S. District Court for the Northern District of Florida and an author of the 1978 FISA Act. “I think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute.”
The judges, however, said Mr. Bush’s choice to ignore established law regarding foreign intelligence gathering was made “at his own peril,” because ultimately he will have to answer to Congress and the Supreme Court if the surveillance was found not to be in the best interests of national security.
Emphasis mine. The FISA process is basically that if you fail in your application to the court, you must go the the FIS Review Court for a second try.
Also, it is very important to remember that surveillance does not mean criminal intent or terrorist activities. It means a suspicion of possible activities. Most surveillance activities actually result in a ‘no threat’ determination. There is no need to prove a crime or terrorism, and the court tends to allow surveillance as a way to disprove terrorist activity.
So, how does a President order surveillance without a court order? It requires the Attorney General to make a series of certifications (see here for what you need to know about surveillance and FISA):
50 U.S.C. § 1802. ELECTRONIC SURVEILLANCE AUTHORIZATION WITHOUT COURT ORDER; CERTIFICATION BY ATTORNEY GENERAL; REPORTS TO CONGRESSIONAL COMMITTEES; TRANSMITTAL UNDER SEAL; DUTIES AND COMPENSATION OF COMMUNICATION COMMON CARRIER; APPLICATIONS; JURISDICTION OF COURT
(a)(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that –
(A) the electronic surveillance is solely directed at –
- the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or
- the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801(h) of this title; and if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808(a) of this title.
(3) The Attorney General shall immediately transmit under seal to the court established under section 1803(a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of Central Intelligence Director of National Intelligence, and shall remain sealed unless –
Emphasis mine. So let’s end the blather about the President not being able to order surveillance without a court order. Of course they can. They just run the risk of being found to have falsely used that authority if it turns out the surveillance failed to meet the criteria established by law. If the AG agrees, then the President gets their surveillance.
Please note that the AG must certify the minimization procedures are intact (i.e., the redaction of any reference to US Citizens caught up in the surveillance of foreign agents). We know for a fact that the AG GUTTED these minimization procedures 3 weeks before Trump was sworn in and therefore allowed the names of the US Citizens to be transmitted outside the NSA and widely into the intelligence community. Note: this gutting of minimization would be AFTER any certification in October – or anytime in 2016.
American law enforcement and intelligence agencies are examining intercepted communications and financial transactions as part of a broad investigation into possible links between Russian officials and associates of President-elect Donald J. Trump, including his former campaign chairman Paul Manafort, current and former senior American officials said.
Emphasis mine, in reverse order:
- The article is from January 19th, 2017 – the day before Trump’s inauguration. “Current and former officials” = Obama Administration, Intelligence and Justice Department.
- The article identifies US Persons (3) who are associates of Trump.
- “Financial transactions” are monitored under another Bush-era anti-terrorism program called TFTP. This program also has safeguards against abuse: “Access to data shall be limited to investigations of terrorism”. I would guess that if this was used in conjunction with the NSA (as is practice), then Team Obama has another paper trail to worry about
- “Intercepted Communications” = NSA
There are 3 names in the article relative to these intercepts – in clear violation of the minimization procedures required by law (and which cannot be overturned by executive memo). Plus, the scope of the investigation clearly shows these names were spread well beyond the NSA.
The F.B.I. is leading the investigations, aided by the National Security Agency, the C.I.A. and the Treasury Department’s financial crimes unit.
Numerous news outlets, including The New York Times, have reported on the F.B.I. investigations into Mr. Trump’s advisers. BBC and then McClatchy revealed the existence of a multiagency working group to coordinate investigations across the government.
This is one of many stories leaked out earlier this year by the Fake News Media referencing information and methods that should never be leaked. This is the reporting that the Fake News Media is now trying to claim is not accurate?
Can we spell CYA?
Americans have been given a set of false choices by the news media of late. Either Trump is wrong and there was no surveillance (not likely), or there was criminal cause for the surveillance (not actually required and reported as never found).
A third explanation exists: Team Obama misused its powers to circumvent the FISA laws (and possibly TFTP) and spied on US Citizens who were part of the opposition political party’s presidential campaign.
What I have laid out here could answer why some in the government and media are now claiming there is no evidence of a FISA court order in October. There is a plausible sequence of events where Obama’s AG was turned down both at a regular court and the FISA court last summer (as I posted over the weekend). That rejection by the FISA court last summer could have led Team Obama to challenge the court’s determination at the higher-level FIS Review Court. Either way, there would be a record of the application (exposure of which would NOT interfere with any investigation – making sure an investigation is done within the rules is not ‘interfering’). But some are claiming there is none?
OK. Or, … Team Obama could have decided to use his executive power and go at this without FISA Court coverage. You only need a pliant Attorney General (or designee).
This means the lack of a FISA Court Order is not solid proof that nothing nefarious happened. We would need to see if the AG certified with the court a Presidential surveillance order. It is either a FISA application and order or an AG certification of an executive action. One or the other.
The irony here is just too much. The NY Times accused President Bush of spying on Americans in 2003 and were proven wrong. Yet here in 2016, we may have President Obama doing exactly that and the evidence for it provided by the very same NY Times.
* The Political Industrial Complex (PIC) encompasses all those elites whose livelihoods are predicated on central-control of resources and who determine who is allowed to succeed in society. It is a bipartisan exclusive club. It includes the Politicians and their career staffers. It includes crony donors and lobbyists who reap government windfalls and special treatment that average citizens cannot obtain. It includes the PIC industrial base of pollsters, consultants, etc. And it includes the pliant news media, whose success rest on access to those in power, and in return for access making sure no bad news will disrupt said power.