Mar 09 2017
In the shifting saga of how members of the Trump campaign/administration ended up having their phone conversations tapped under the Obama administration, the American people have been fed a series of shifting excuses on how the Obama administration would never violate the laws concerning surveillance of US Persons.
Then we were given the impression by the Fake News Media these “intercepts” were under a FISA court warrant. But later we learned the FISA court rejected the application by Team Obama in June 2016.
Apparently, the Obama’s administration tried twice last year to monitor members of Trump’s campaign. Once via the regular (Title III) courts and once through the FISA Court. So let’s stop pretending this was not something Team Obama desperately wanted to do. The fact they failed does not erase the efforts behind the attempts.
But then something else happened in October. What it was is unclear. Speculation was Team Obama tried either a second run at the FISA court with a more focused application, or they possibly appealed to the FIS Review Court. The initial reports were of a successful FISA application and surveillance warrant in October.
Then DNI Clapper publicly stated that there was no FISA Court warrant targeting team Trump. None.
So let’s assume he is being truthful – if not painfully precise. That means no FISA warrant on Team Trump in October either. So we are back to the excuse that the US Persons were caught up in the surveillance of foreigners.
It should have been one of the most congenial calls for the new commander in chief — a conversation with the leader of Australia, one of America’s staunchest allies, at the end of a triumphant week.
Instead, President Trump blasted Australian Prime Minister Malcolm Turnbull over a refugee agreement and boasted about the magnitude of his electoral college win, according to senior U.S. officials briefed on the Saturday exchange. Then, 25 minutes into what was expected to be an hour-long call, Trump abruptly ended it.
U.S. officials said that Trump has behaved similarly in conversations with leaders of other countries, including Mexico.
President Donald Trump threatened in a phone call with his Mexican counterpart to send U.S. troops to stop “bad hombres down there” unless the Mexican military does more to control them, according to an excerpt of a transcript of the conversation obtained by The Associated Press.
The excerpt of the call did not detail who exactly Trump considered “bad hombres,” nor did it make clear the tone and context of the remark, made in a Friday morning phone call between the leaders. It also did not contain Mexican President Enrique Pena Nieto’s response.
A person with access to the official transcript of the phone call provided only that portion of the conversation to The Associated Press. The person gave it on condition of anonymity because the administration did not make the details of the call public.
How was Gen Flynn’s call with Russia’s Ambassador intercepted and reported – a call made when Flynn was a citizen?
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.
Please note that two of these intercepts involved the President of the United States! This is serious stuff folks. Who is spying on the President?
There are more examples of intercepts, but these sufficiently lay the question on the table.
So, who tapped Team Trump?
Well, only one organization has the ability to tap international communications – the NSA. And there are a lot of rules surrounding NSA intercepts. I do not think the NSA went rogue. I think people knew what the NSA vacuumed up and misused that information for personal reasons (it definitely was not national security – the reason NSA does what it does).
Clearly we have disturbing examples of US Persons being monitored, and then leaked.
And that is where a new paper trail begins – with the leaks. Some think that is a deadend trail.
But it is not!
Just as with the POTUS directed surveillance, there must be a paper trail for the distribution of the names and content of raw intelligence (i.e., those transcripts such as we have seen reported above). We know that Obama’s AG loosened the rules governing distribution of raw intelligence 3 weeks before leaving office. And it is within those rules we find potential sources for a possible smoking gun.
To gain access to the NSA intercepts, Obama administration officials had to make a written and detailed request. Here is the unclassified document that governs how US Names names and related content of intercepts can be communicated outside the NSA (and into the hands of the leakers). Inside that document we discover a lot of interesting details:
The purpose of these Procedures is to enable IC elements to conduct their national security missions more effectively by providing them with access to raw SIGINT from NSA, as authorized by section 2.3 of E.O. 12333, in a manner that complies with the Fourth Amendment and protects the privacy of U.S. persons.
Emphasis mine – a clear objective here is to protect US Citizens. Clearly Team Obama failed miserably since the intercepts and the names of US Persons were spread all over the Fake News Media. What follows are some of the tings required to obtain the details of the US Person involved in a surveillance.
Recall, if the Russian Ambassador’s surveillance is under FISA warrant, any information about a US Person involved in the intercept normally is deleted/redacted UNLESS the entity outside the NSA answers the following.
A. (U) Access request from an IC element. NSA may provide raw SIGINT to an IC element only if the head of the IC element or a high-level designee makes a written request describing the raw SIGINT sought and stating whether the element wishes to conduct communications metadata analysis in accordance with section IV.F below. The request will address the following:
The trail begins here. For every entity in the US Intelligence Community involved with the intercepts of Team Trump, the head of that entity should have filled out this request, including:
- (U) Use of information. The IC element will explain how it will use the raw SIGINT, to include identifying the particular authorized foreign intelligence or counterintelligence missions or functions that are the basis for its request.
The request has to pertain to a mission or functi0n (i.e., an investigation). In this case, since Team Trump members are not named targets, this will likely be a bit if a ruse – such as investigating Russian hacking of the DNC and Podesta. But this is thin ice – since you still need a warrant to investigate a US Person. So a bit of misdirection here is likely to be legally dubious.
- (U) Value of information. The IC element will describe how it expects the raw SIGINT to further such missions or functions in a significant way.
- (U) Other sources of information. The IC element will explain why other sources reasonably available to it cannot provide the information the element expects to obtain from the raw SIGINT.
These two items represent a pretty high bar. The requesting agency needs to explain why naming the US Person involved and providing their part in the intercept is needed. This is where you run into US Constitution. This kind of surveillance can only be used for threats of terrorism, etc. You cannot investigate a US Person and violate their rights. Basic crimes do not apply. The “other sources”probably include warrants from the normal (Title III) courts. One would expect the request to be rejected and the requesting entity to be forced to use due process if this was to focus on US Persons.
Skipping down, we get to another key item: who reviewed and approved these requests:
C. (U) Evaluation of requests. A high-level NSA official designated by the DIRNSA will review requests for raw SIGINT covered by these Procedures. NSA will document its approval decisions in writing and include a statement explaining how the request fully complies with paragraph A.
OK, a key person who should have participated in the legal distribution of intercepts involving members of Team Trump would be the Directory of NSA and whomever they designated to review the requests.
And if there is any confusion or ambiguity regarding US Persons, it is blown away with the following:
B. (U) General protections. Any IC element that obtains access to raw SIGINT under these Procedures will:
- (U) Fourth Amendment. Take steps to ensure its processing, retention, and dissemination of the information complies with applicable requirements of the Fourth Amendment.
- (U) Compliance with law. Ensure that IC element personnel with access to raw SIGINT abide by the Constitution, applicable law, executive order, directive, regulation, policy, or guidance, including E.O. 12333, these Procedures, and the applicable MOA.
- (U) Political process in the United States. Not engage in any intelligence activity authorized by these Procedures, including disseminations to the White House, for the purpose of affecting the political process in the United States.
That last one is a real high bar. How could requesting intercepts and names of Candidate Trumps campaign members pass this bar? How did President Trumps phone calls get disseminated??
It does not seem likely this process would be used to distribute intercepts involving US Persons or the President. It makes no sense.
So how did it happen then? How did something like this get reported:
Flynn’s contacts with Kislyak reportedly included several calls on 29 December, the day on which Barack Obama announced the expulsion of 35 Russian officials, as well as other measures in retaliation for Russian interference in the election. The official said Flynn and Kislyak have also been in contact at other times, according to the AP.
There has yet to be any good explanation on how these intercepts made it from the NSA to the Fake News Media. And we know the Obama White House was aware of some of these – that too was reported.
Until we get a good answer, President Trump has a legitimate charge against the prior administration, based on news media reporting alone.
Finally, let me note how the #NeverTrump right have their collective heads in the sand on this topic of illegal surveillance and leaking. I stopped reading AllahPundit at Hot Air months ago because he is a clear #NeverTrumper. He sides more often than not with the political establishment (apparently he has gone native). This recent post of his discusses Sen Lindsey Graham’s call for information on these intercepts, and quickly skips over the fact we have ample evidence of illegal intercepts and leaking:
If Trump is right that O had him wiretapped illegally for political reasons, said Graham, it’s the biggest scandal since Watergate. But if it turns out that Trump or his aides were wiretapped lawfully, because a judge concluded that there’s probable cause to believe they were breaking the law, that’s also the biggest scandal since Watergate — and it would be a Trump scandal, not an Obama scandal.
Ignorance is deep here. First, to lawfully wiretap a US Person you need to go to a normal Title III Court and get a normal warrant. Nothing thrown at Team Trump rises to the national threat levels that would invoke a FISA court. And yet, we are told there is not FISA warrant now. No warrant at all. So there was no judge allowing a warrant – according to the DNI and latest excuses.
This was all about US Persons caught up in incidental intercepts, possibly involving foreign nationals under surveillance. Except – the naming and dissemination of the US Person and their transcripts is forbidden. Especially in regards to our political process (you know, a presidential election…).
There is no legal basis for any of this. And we have the beginnings of paper trail to begin the investigation. Find the FISA applications. Find the AG certification of a POTUS ordered surveillance if one was launched. And find the requests to NSA for the data that was clearly leaked to the Fake News Media.
There are names a plenty to begin the process if these exist.
And if they don’t exist – then someone broke some very serious laws in the Obama Administration