Trump’s Wiretap Dance

I've already explained, in a post over at Just Security, some of the law and background surrounding what we know about Donald Trump's incendiary claim that his predecessor wiretapped his phones at Trump Tower during the presidential campaign, and I'd suggest reading that if you want to delve into some of the wonky details, but I thought it might be worth a separate point to pull out some of the critical points and remark on how the story has evolved since Saturday.

• There's no basis on the public record to support the allegation that phones at Trump Tower were wiretapped, or that the Trump campaign was targeted for electronic surveillance, let alone on the orders of Barack Obama. Former Director of National Intelligence James Clapper has publicly denied it, and FBI Director James Comey has reportedly been pressing for a disavowal from the Justice Department. This appears to be something Trump concocted on the basis of (deep breath now) his own misreading of a misleading Breitbart News article based on a talk radio host's summary of months-old reports in the British press. Those news stories—which conspicuously haven't been reported out by the deeply-sourced intelligence journalists at U.S. outlets, and so should be taken with a grain of salt—concern some sort of order, purportedly sought by the FBI from the Foreign Intelligence Surveillance Court, targeting Russian banks in order to follow up intelligence leads concerning possible transfers of funds from Russia to Trump aides. If the reports are true, that's vastly different from what Trump alleged, and not obviously improper on its face, though when intelligence surveillance intersects domestic politics, even indirectly, there's always an elevated risk of abuse.
• The White House has been dodging and weaving a bit in its public statements following Trump's allegations on Twitter. Initially, aides told multiple reporters that they thought the president had been reacting to the Breitbart piece, which was circulated internally on Friday. But, as I explain in more detail in my Just Security post, the sources drawn on for the Breitbart piece don't actually support Trump's claims. More recently, spokeswoman Kellyanne Conway insinuated that Trump may have some other classified basis for his accusations. She's called on the FBI to release more information, while other White House officials have suggested it should fall to Congress to investigate. This is all, to put it mildly, grossly irresponsible. If the president has classified information about improper surveillance of his campaign, he is empowered to declassify it. If he's not sure whether to believe what he reads on the Internet, the head of the executive branch is not limited to relying on Breitbart News to learn about the activities of his own intelligence community. But it should be wholly unacceptable for Trump to level serious accusations of criminal abuse of intelligence authorities by his predecessor,  then punt to Congress when pressed to produce evidence.  
  

• The fact that Trump is apparently unshakable in his conviction on this point, with one spokesman indicating that he doesn't believe Comey's denial, is one more data point confirming that the relationship between the White House and the intelligence community had become untenably dysfunctional.  At the most recent Cato Surveillance Conference, a panel of former senior intelligence professionals voiced concern that Trump might be unwilling to accept intelligence that conflicted with his preconceptions. Some skepticism of the intelligence community is, to be sure, both healthy and justified, but if the president is more inclined to trust thinly-sourced conspiracy theories on talk radio than his own FBI director, that seems to quite starkly validate the panelists' concerns. Signaling that intelligence output is going to be disregarded whenever the facts aren't to the president's liking is how you get politicized intelligence, which is detrimental to national security and, in the worst case, can lead to outcomes like foreign wars over nonexistent Weapons of Mass Destruction.
• Notwithstanding all that, it could not hurt for Congress to kick the tires a bit and ask to be briefed on what intelligence tools have been employed in the course of the Russia inquiry, to what extent they may have ensnared either the communications or other records pertaining to Trump associates, and how widely any such information was subsequently disseminated. Not, again, because there's any reason to credit Trump's dramatic claims, but because the crossroads where foreign intelligence meets domestic politics is inherently a high-risk territory. Our history is, alas, replete with instances of information gleaned from foreign intelligence surveillance—often pursuant to investigations that were, in their inception, perfectly legitimate—later being improperly used to advance a political agenda. Quite apart from Trump's most recent allegations, news headlines over the past month have been dominated by intelligence leaks that create the appearance of a war between the administration and elements of the intelligence community, which as I've written previously, is unlikely to end well for American democracy whichever side comes out on top.  
• To the extent all this has awakened some members of Congress to the potential for abuse inherent in so-called "incidental" collection of Americans' communications and other information as a byproduct of foreign-targeted surveillance, one hopes that newfound awareness outlives this news cycle. Many of the same officials now incensed by leaks harmful to the Trump administration have pooh-pooed concerns about the scale of collection on U.S. citizens under §702 of the FISA Amendments Act of 2008, which must be reauthorized—and ought to be reformed—by the end of the year. Several pundits have made the Obama administration's loosening of the rules for sharing raw intelligence collected by the NSA pursuant to Executive Order 12333 part of their narrative about a "soft coup" against Trump by the "Deep State." Surely they should be even more worried about the fact that the FBI can query NSA's vast databases of §702 intercepts for the communications of Americans, exempt even from the statutory requirement (which does apply to CIA and NSA) to count and report on how often such "backdoor searches" occur. If such easy access to intercepts presents an unacceptable risk of political abuse, surely the solution is not simply to purge the current intelligence bureaucracy and stuff it with more devout loyalists, but to change the rules that make it possible. 

I'll have more, no doubt, as this strange story continues to play out.