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Could the President Spy on His Political Opponents?

The controversy continues over President Trump’s Twitter storm accusing President Obama of wiretapping him. On Monday, members of Congress peppered FBI Director James Comey with questions about the claims, who once again dismissed them as lacking support. Even Devin Nunes, the Republican chairman of the House Intelligence Committee, who originally defended Trump’s claims, has defected [1]. “I don’t think there was an actual tap of Trump Tower,” the congressman said last week at a news conference. None of these statements seem to have affected President Trump, however, who continues to stand by his accusations.  

But regardless of whether these claims turn out to be completely false, which is all but certain now, they do raise a question that shouldn’t be casually dismissed: Could President Obama’s administration have surveiled his political opponents under its interpretation of the law? Could President Trump’s administration now do the same?

The answer, unfortunately, is yes. And that should make Republicans and Democrats nervous enough to work together to reform our surveillance laws.

Many have dismissed [2] President Trump’s accusations as the unsubstantiated ramblings of a Twitter addict with little understanding of how our intelligence laws work. These may be fair criticisms—today the president cannot simply order the intelligence agencies to wiretap his domestic political opponents. But many of our surveillance authorities have been interpreted so broadly that they put vast amounts of Americans’ data easily within the president’s reach. Without significant reform, exploiting this immense pool of data may one day prove irresistible. Thus, whether President Trump’s accusations are true or not, the potential for White House officials to abuse our spying laws for political purposes is real.  

It is important to remember that surveilling political opponents in the name of security is something of an American pastime. In the 1960s, the FBI targeted political activists, including Martin Luther King Jr [3]., claiming they posed “national security” threats. Cesar Chavez, the prominent labor and civil-rights activist, was similarly tracked [4] for years because of his supposed communist ties.   

In response to many of these types of abuses, Congress created the Church Committee to investigate surveillance practices. The widespread crimes and abuse they uncovered led to the passage of the Foreign Intelligence Surveillance Act (FISA) in 1978. But recent disclosures demonstrate that the law did not go far enough. Moreover, passage of the Patriot Act in 2001 and other laws have undercut the protections in FISA, further opening the door to biased, unjustified, or politically motivated spying. There are jarringly few protections against these abuses.

The result: if the president wanted to surveil his critics, he could exploit at least three national security authorities.

Section 702 of FISA

Section 702 of FISA was passed at the request of the Bush administration and extended at the request of the Obama administration with bipartisan support. Now the Trump administration is reportedly [5] pushing for reauthorization of this law when it is set to expire in 2017, with the nominee for the director of national intelligence calling it the “crown jewels” of the intelligence community. FBI Director Comey once again defended the controversial program.  

While Section 702 was passed to protect against international terrorism, its tentacles reach much farther [6]. Under the law, the government collects emails and phone calls—without a warrant—of nearly 100,000 foreign “targets.” These include their conversations with people in the United States. These targets can include journalists, human-rights workers, and other individuals who have no connection to terrorism or criminal activity, and whose only offense may be discussing information related to “foreign affairs”—a nebulous term.

Over 250 million internet communications [7] alone are collected under Section 702 annually. While the government refuses to disclose how many Americans have been swept up in this dragnet, analysis [8] of leaked documents suggests that at least half those communications contain information about a U.S. citizen or resident. If that’s accurate, the Trump administration will collect over 125 million internet communications that contain information about someone in the United States. Given that much of the data collected under Section 702 is stored for five years or longer, it means the government likely has access to hundreds of millions of stored emails and phone calls.

Once collected, the government asserts that they can mine this information to scrutinize the activities of Americans—opening the door to political abuse. For example, if the intelligence agencies under President Obama had wanted to search through Section 702 data for information about Senate Majority Leader Mitch McConnell (R-Ky.), on the argument that McConnell might possess information about “foreign affairs,” no technological barrier or explicit provision in Section 702 would have stopped them. Under current procedures, no court would have needed to approve this and Senator McConnell would not need to be notified that he had been the subject of such a search.

Under the government’s current interpretation of the law, this information could then be used as the basis for a criminal prosecution, criminal investigation, civil action, or additional surveillance.

Executive Order (EO) 12333

Under Executive Order 12333, the government engages in the bulk collection of communications and data—with no approval from a court or any other independent judicial body. This surveillance primarily takes place abroad. While the government is not supposed to target Americans under EO 12333, this spying likely results in the collection of information of millions of Americans. We know, for example, that the government reportedly relied on EO 12333 to steal data transmitted between certain Yahoo and Google data centers [9]; to capture the content of all phone calls to, from, and within the Bahamas and other countries [10]; and to collect millions of text messages [11] from individuals around the world.

Under EO 12333, the government can target foreigners for “foreign intelligence” purposes, which, similar to Section 702, is a category so broad that it easily encompasses individuals who have no nexus to a national-security threat. As a result of recent NSA procedures, agencies across the federal government now have the right to request access to the raw information collected under EO 12333, which can contain the information of both Americans and foreigners.

While NSA officials have said there are procedures [12] that limit the ability of the NSA to search through electronic surveillance captured under EO 12333 for information about Americans, those procedures are largely secret and can be modified purely at the discretion of the president. Moreover, the government has taken the position that information collected under the executive order can be used to prosecute Americans for certain ordinary domestic crimes—even though it was collected without a warrant.

In practice, this means that if the president decided to unilaterally change EO 12333 procedures to allow him to search for information for purposes unrelated to national security, he would have broad latitude to do so under the government’s current legal interpretations. In addition, it means that if the government stumbles across information related to these individuals in the trove of data they collect, they may assert the right to use it as the basis to prosecute or further investigate these individuals, without ever notifying them. This creates a bizarre incentive for any ill-intentioned president: the more information collected under EO 12333 in the name of security, the more information that can be mined for other purposes.

“Traditional” FISA

Although FISA was passed with the admirable goal of halting many of the surveillance abuses of the 1960s, this statutory scheme is not nearly as protective as a warrant. Specifically, unlike an ordinary warrant or wiretapping order, a traditional FISA order does not require the government to believe that its spying will produce evidence of a crime, and the secrecy surrounding the FISA court undermines effective oversight. For these reasons, the ACLU has long cautioned that FISA authorities are prone to abuse.

Under FISA, when the government seeks to conduct electronic surveillance, it must submit an application to the secret intelligence court demonstrating that there is probable cause that its individual target is a “foreign power or an agent of a foreign power,” and it must identify the particular phone line or communications facility used by the target. The terms “foreign power or agent of a foreign power” are broadly defined. They include foreign government officials, foreign political organizations not substantially composed of U.S. citizens or green-card holders, and foreign individuals engaged in terrorism. While this authority is certainly narrower than EO 12333 or Section 702, it too leaves room for abuse.

For example, under traditional FISA, the government would have the authority to surveil virtually any foreign government official—including that official’s entirely legal conversations with individuals in the United States. These communications can be retained or disseminated under procedures that are more lenient than those that apply to federal wiretaps. For instance, in the wiretapping context, the government is supposed to immediately purge communications that are considered irrelevant. FISA, by contrast, permits retention, analysis, and dissemination of Americans’ information for years, regardless of whether there is any evidence of criminal activity.   

The Potential for Abuse Is Real, No Matter What the Intel Community Says

The intelligence agencies would argue that these authorities do not permit the government to deliberately “target” Americans—at least not without a warrant—mitigating constitutional concerns. But that explanation only tells half the story. The reality is that these authorities are used to vacuum up large amounts of Americans’ data, do not prevent the government from knowingly capturing the communications that Americans have with tens of thousands of foreign “targets,” and, in some cases, routinely collect purely domestic communications. Moreover, once Americans’ information is collected, there are inadequate safeguards to ensure that such data is not inappropriately used.  

The fact that our intelligence-gathering laws leave room for politically motivated surveillance should give us pause. And it’s not enough for President Trump or members of Congress to simply express outrage that the private communications of political leaders could have been surveilled. With the expiration of Section 702 looming, they have the opportunity to push for a complete overhaul of our surveillance authorities, and ensure that they are brought fully in line with the requirements of our Constitution.  

In other words, President Trump should match his action to his tweets, and demand that Section 702 and other authorities be reformed.

Neema Singh Guliani is a legislative counsel at the ACLU focusing on surveillance, privacy, and national-security issues. Prior to the ACLU, she worked at the Department of Homeland Security and as an investigative counsel with the House Oversight and Government Reform Committee.

14 Comments (Open | Close)

14 Comments To "Could the President Spy on His Political Opponents?"

#1 Comment By EliteCommInc. On March 22, 2017 @ 1:35 am

Ohh good grief,

What Mr Trump stated was technically incorrect or without support. But if you pay attention to how Mr Trump uses language, one gets the point.

He was under investigation. Did said investigation include some high tech methods, I wouldn’t doubt it. If there was “credible evidence” as is touted about

The civil rights movement under Dr./Rev King was surveilled by the CIA. I don’t put it past anyone in government to keep tabs on US citizens. The 1950’s, the 1960’s. The spying technology of the NSA, CIA, DIA and and legal entities under the Patriot Act, I am unclear how anyone could doubt this as possible and probable.

#2 Comment By Fran Macadam On March 22, 2017 @ 5:59 am

Since the ACLU harbors a hatred of Trump, its representative is at pains to claim Trump’s accusations that his campaign’s communications were captured and stored is a lie, while the rest of his piece contradicts that assertion and proves they were. Instead the claim is made that what Trump said happened to him, can’t be so even though Obama bequeathed him that very apparatus technically and legally. Somehow we are supposed to disbelieve what Snowden revealed to us has already happened. But semantics and misleading language by the Deep State are also to blame. The motto really is “collect it all” while claiming that all our communications stored in vast databases for access aren’t really “collected” until a human being with proper authority pulls them up to use or leak – whatever that might be, since practically speaking, Snowden showed anyone with access to the system trivially could, and has access to anyone’s content, FISA joke “court” or no.

#3 Comment By Kurt Gayle On March 22, 2017 @ 8:17 am

On “Face the Nation” (March 12) Senator Rand Paul said:

“Well, I think the first thing to realize is that I think everybody has been getting the story wrong. I doubt that Trump was a target directly of any kind of eavesdropping, but I am not saying it didn’t happen. I think there’s a very good chance it does. I don’t have any special information. But the way it works is, the FISA court, through Section 702, wiretaps foreigners and then listens to Americans. It is a backdoor search of Americans. And because they have so much data, they can tap — type Donald Trump into their vast resources of people they are tapping overseas, and they get all of his phone calls. And so they did this to President Obama. They — 1,227 times eavesdrops on President Obama’s phone calls. Then they mask him. But here is the problem. And General Hayden said this the other day. He said even low-level employees can unmask the caller. That is probably what happened to Flynn. They are not targeting Americans. They are targeting foreigners. But they are doing it purposefully to get to Americans.”

[13]

#4 Comment By Judy Brown On March 22, 2017 @ 12:53 pm

All I can say is that “Thank God” someone is looking into this President.

#5 Comment By Joe the Plutocrat On March 22, 2017 @ 5:12 pm

Third attempt to submit this comment. Devil’s advocate. If I am not mistaken, the POTUS swears an oath “…to the best of my ability, preserve, protect and defend the Constitution of the United States.”. Political opponent, or not; if based on intelligence or other information at hand the individual in question is deemed a threat, why of course, yes. Potential for abuse? Again, why of course, yes. Read James Bamford’s The Puzzle Palace (1982). This is not a 21st century dilemma/issue.

#6 Comment By stinky rafsanjani On March 23, 2017 @ 5:05 am

if you listen carefully (hehe), you’ll find that most of those claiming trump is lying are repeating he was not “wiretapped.” and they are so correct.

classical wiretapping with alligator clamps on exposed copper wires went away with the IBM XT. no longer needed as the spooks have direct access to the main routers in all the telecoms hubs.

listen as they knowingly ask about “wiretapping” at the hearings, and as comey responds that trump was of course not wiretapped.

listen as he says no US agencies spied on trump.

listen as he clarifies that “his office” was not bugged.

wow.

#7 Comment By polistra On March 23, 2017 @ 5:08 am

NSA monitors everything, so we know it monitored Trump Tower because Trump Tower is included in Everything. We also know that NSA paid close attention to this particular piece of Everything because Trump made noises indicating he might slow down globalization by a tiny fraction. He was thus a deadly threat to NSA’s power and budget, requiring close attention to gather blackmail material. There’s no surprise or bombshell.

The only question here is why Trump made the accusation without IMMEDIATELY supplying full documentation. As President he has access to things like FISA warrants. By making the accusation without supplying full documentation, he allowed the opposition to gain TREMENDOUS advantage.

That’s atrociously poor leadership.

#8 Comment By Fran Macadam On March 23, 2017 @ 5:10 am

Judy Brown, back in the day, there actually were denizens of the USSR who plainted, “‘Thank God’ for the NKVD and the KGB!”

#9 Comment By Dieter Heymann On March 23, 2017 @ 9:14 am

The issue at hand is not “could” but “did President Obama order candidate Trump’s phones to be tapped”? At this time the answer from the tapping agencies is no.

#10 Comment By Johann On March 23, 2017 @ 4:09 pm

For some, the only way they would admit that Trump may have had a point with his wire-tap tweet is if a video was uncovered showing Obama himself sneaking into Trump tower and personally hooking up wires to a landline phone.

#11 Comment By Bill Rood On March 23, 2017 @ 8:39 pm

polistra seems to be the only person here who listened closely to Ed Snowden several years ago. For a refresher, take a listen to this starting around 2:10 and pay special attention to Snowden’s explanation of “collect” in the “plain use of language”: [14]

Thus, the NSA database has all of Trump’s electronic communications going back several years. The only question is one of access. Did anyone listen to said communications and/or make a transcript?

Furthermore, GCHQ’s denial that they “wiretapped” Trump (something Napolitano never alleged) means nothing more than that they did not use allegator clips to tap into copper phone lines. Their denial is not a denial that they participated in surveillance of Trump as part of “Five Eyes” or provided transcripts of intercepted communications.

I disagree with polistra regarding Trump’s ability to extract information from the intelligence community such as FISA warrants. In order to do that, he must rely on subordinates such as Comey, and if those subordinates are disloyal and obstruct him, he is merely a figurehead and has no power.

It will be interesting to see what happens after Nunes briefs Trump on what was disclosed to him about Montgomery’s information. If Montgomery or Klayman kept a copy of the hard drives Montgomery had, this could get interesting.

#12 Comment By PDF On March 23, 2017 @ 11:51 pm

There is another means for Presidents to have plausible denial while spying on their opponents. It has happened as you will know if you go back and examine the revelations of the Church & Pike committees in the early 1970s and revelations of whistleblowers since that time to Snowden. Many observers believe that the close association between Obama’s CIA Director and the head of the U.K.’s signals intelligence agency, GCHQ, should not be dismissed by the testimony of NSA Director Rogers. Rogers did not have to lie by saying that he did not ask his counterparts at GCHQ to spy on Trump associates. He may not know of any such collusion by Brennan or others in the intelligence community. Note the recent director of GCHQ, a personal friend of Brennan & Obama Ambassador Susan Rice, and an outspoken U.K. critique of Trump during the campaign, was forced to resign by the new U.K. Prime Minister shortly after her visit with Trump. His statements against a candidate in the American election was unprecedented as the Brits usually keep their mouths shut on shut subjects. Brit intelligence chiefs anyway. But not this time, by George. NSA and GCHQ are part of the Five Eyes alliance that has in the past acted more like a spy cartel independent of their sovereign governments. They have spied on each other citizens before to provide “plausible denial” They can easily go around such artifacts as FISA if they choose to do so. Furthermore, there are now private contractors working for the Five Eyes that could also have done the dirty work, providing further cut-outs between any privacy violation and the ultimate consumer of any intelligence from that violation. The question for the law, here, is how does a sovereign state regulate a global spook network. How can the United States, for example, have laws governing foreign spy agencies or shadowy contract spooks.

#13 Comment By P Tocco On March 24, 2017 @ 6:34 pm

We are living in an age of dragnet surveillance, on an institutional level, to be sure. All the telecom companies were forced to accommodate government surveillance, in the form of sealed-off rooms full of equipment that syphons off the data stream into government servers. Whether it’s fiber optics, satellite, or telephone transmission, dragnet surveillance captures most if not all communications today. We learned this from Edward Snowden. Amazingly, even contractors like Snowden could punch in a few names and numbers and retrieve a boatload of information on virtually anybody. Post Snowden, only cosmetic changes have been made. It is still incredibly wide-open and self-policed, with virtually no accountability or oversight. Meanwhile we the public are led to believe that it is very difficult for a security operative to gather data on an American citizen. But imagine you have the necessary clearance, and you are of the belief that if you sit by and do nothing, your political opponent may ruin your career, destroy your agency, or blow up the world, etc. Wouldn’t you be tempted to gather data on this adversary, knowing that no logs are kept of who is accessing records etc? I believe that is a fairly accurate picture of our current intelligence gathering system, which has become something of a dream come true for the spies of our country.

#14 Comment By Steve Carr On March 25, 2017 @ 10:11 am

Obama spied, NSA and CIA is out of control, but that’s the way we are going and we are excepting it, instead of doing something about it. Wake up and smell the coffee, if we don’t have outrage today what will tomorrow bring. Stop the Government from spying on everybody. Also give a try to the search engine that does not change its results for political reasons and respects your privacy, just good old fashion results that are not tracked. Lookseek com The world is over as we once new it. have a awesome day