TrumpTaps, Section 702, and Russell Tice: Three Levels of Talking About Political Surveillance

By Alex Marthews, National Chair

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In every country that has adopted mass surveillance, it has been abused for domestic political ends. It was so in (of course) the Soviet Union. It was so in East Germany. It was true in the US under Hoover and Nixon. Yet amid all of the scorn and hullabaloo about Trump’s tweets accusing President Obama of surveilling his campaign, and Nunes’ public confirmation of “incidental” collection, no-one’s asking the important question: What, in reality, prevents political surveillance from happening here?

The level I answer, from most journalists, is: Well, we’re America, and we have mechanisms that would prevent it from happening. We have a FISA court, and if you’re going to surveil an American, you need to go to that court, and get their approval. There’s no record of a request to the FISC to surveil Trump, and therefore Trump wasn’t surveilled.

This is goldfish journalism.

Let’s stipulate, safely, that Trump doesn’t have much expertise in how any of the government’s complex, semi-secret and overlapping surveillance authorities are supposed to work. In all likelihood, he was casually repeating something he saw on Fox, and wasn’t expecting it to be the huge controversy it’s now blown up into. He’s not a specialist in this stuff. He doesn’t, I suspect, really care to understand more. Nunes, in the interests of defending Trump, is now saying Trump’s organization was incidentally surveilled, and is expressing concern about incidental collection that he hasn’t expressed before; Schiff, the Democratic ranking member of the House Intelligence Committee, has protested that insofar as there was incidental collection, it was entirely legal. Yes, it is legal. That’s kind of the problem.

So journalists should know better than to come up with absurdities like “There was no surveillance because there was no paper trail at the FISA court”, or, worse, “There was no surveillance because former DNI James Clapper says there wasn’t.” Oh really? What, the same Clapper who is a byword for lies after perjuring himself under oath in testimony to Congress, in which, specifically, he denied surveillance of Americans that in fact existed? That James Clapper? In a just world, nobody sane would use Clapper as a trusted source for anything but the menu in the prison cafeteria.

On the paper trail, it was barely 15 years ago that President Bush set up the “President’s Surveillance Program”, which was specifically designed to evade the FISA court and warrantlessly surveil Americans – and much of that program was not stopped, but was simply legalized in 2008.

Journalists who trust such statements and write them up uncritically and without context, need their heads examined.

The level II analysis on this stuff, which I’ve seen from a few sources, is: OK, Trump was inaccurate to use the term “wiretap”, but there are broader surveillance programs, like those operating under Section 702 of the FISA Amendments Act (PRISM and UPSTREAM) that could certainly have intercepted his private communications and the communications of those in his circle. Such surveillance wouldn’t have been ordered by President Obama as a matter of targeting Trump specifically, but would have been an incidental effect of those larger programs which he did approve and renew. Now Nunes, by referring to “incidental collection under the Foreign Intelligence Surveillance Act”, appears to have confirmed this “level II” kind of surveillance. The fact that it is possible for such communications to be swept up is a serious problem that requires more of a reaction from Democrats than, “But this was legal”, and from NSA than “trust us, we’ll minimize that stuff out.”

But even beyond this, there’s a further level of analysis worth conducting. Back in 2006, Russell Tice, a senior NSA employee, blew the whistle on the NSA conducting specific surveillance on presidential candidates. Not only on them, but on members of the FISA court, the House and Senate Intelligence Committees, and Justice Antonin Scalia. True, both NSA and the O’Reilly Factor did their best to discredit his testimony at the time; but it boggles the mind that we can have a discussion about whether political surveillance is happening without even citing to what Tice said. We have no way of knowing whether the programs Tice revealed continue today. There’s no evidence that President Obama shut them down, or even knew about them, and NSA would have no incentive to let President Trump know about them either. So, you know, maybe the US is different. Maybe our NSA folks are just much more virtuous than people working for other countries’ surveillance agencies. Or we could be just like every other country that has done mass surveillance. Which seems more likely to you?

Which brings us to the final part of this analysis.

Having a President running his mouth about surveillance based on gossip and rumor is a bad thing. We can all agree on that. But in conversations with NSA sympathizers since the election, some of them are reacting in a disturbing way, as follows: That Trump should “not be allowed” to change existing alliances – that NSA has the right to withhold information from the President’s Daily Brief that they’re worried will be shared with Russia; in short, that in the absence of meaningful political opposition to Trump from Congress, the intelligence community should step in and be the saviors of the Republic.

nsa_susan#Resist!

Sorry, I mean, #AreYouGoddamnSerious? The NSA and CIA are going to save us?

If the intelligence community wants to give the impression that they’re far too professional to conduct political surveillance, they’re going the wrong way about it. After all these years, they still won’t even tell us how many Americans they’re spying on through “incidental” collection, and now if they act to discredit Trump using data from mass surveillance, what the hell kind of precedent will that set?

I want a president who will tangle effectively with the intelligence community and rein it in. Nothing about Trump suggests that he is that president. But both Democrats and Republicans who love this country should be able to tell the three-letter agencies, in words of four letters if need be, that it’s not their job to save us. It’s our job to save ourselves, from the much overhyped threat of terrorism, from incompetent elected officials, and from the agencies themselves.

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