President Trump, terrorism, Trump, FISA, twitter, social media

Trump’s FISA Mess

By Grace Lidia Suárez

On the House plate Thursday was the renewal of Section 702 of FISA, a statutory scheme which has been in effect since 1978, and which governs the collection of security-related information from foreigners in foreign countries. Just the day before, the Trump administration signaled its approval of the renewal, as past administrations have done.

The Administration supports House passage of the House Amendment to S. 139, the FISA Amendments Reauthorization Act of 2017.

Section 702 of the Foreign Intelligence Surveillance Act of 1978 provides authorities to collect critical intelligence on terrorist organizations, weapons proliferators, and other foreign adversaries that is vital to keeping the Nation safe. Reauthorizing these authorities before they expire on January 19, 2018, in a manner that preserves their effectiveness, is a top priority of the Administration.

The Administration would prefer a clean and permanent extension of section 702 of FISA. The bill would, however, provide for a six-year reauthorization of section 702, a critical extension that will keep America safe from those who wish to do us harm.

If the House Amendment to S. 139 were presented to the President in its current form, his advisors would recommend that he sign the bill into law.

That was before President Trump watched Judge Napolitano on Fox News. The Fox TV personality, who was once a state trial court judge, and who had been suspended by Fox for making unsubstantiated claims accusing President Obama of ordering wiretaps on the Trump campaign, railed against the act. He turned to the camera and addressed Trump directly, urging him to oppose the renewal.

Within minutes, Trump tweeted,

Shortly thereafter, with no explanation, Trump changed his mind and announced his support of FISA.

“With that being said, I have personally directed the fix to the unmasking process since taking office and today’s vote is about foreign surveillance of foreign bad guys on foreign land. We need it! Get smart!” Trump tweeted.

Since there were no changes to the proposed law, no one could figure out what Trump was talking about.

Why did Trump oppose the bill?

FISA is not without controversy. Privacy hawks find much to criticize, but past governments, seeing the need to collect data on enemies (and sometimes on others), have never opposed its passage.

Trump, however, seems to believe that the Obama administration used a FISA warrant to “tapp” his phones during the campaign. That is apparently what he was alluding to in his tweet.

There is absolutely no evidence Obama did this. Moreover, if he had, it would have been a blatant misuse of the statute, which would have required a vast conspiracy among the FBI, the Justice Department, and the federal judges who sign the warrants. In short, Trump’s tweets accused the former president, his administration and the judiciary of violating the law on an unheard of scale.

This reaction from Lawfare expresses how most rational people reacted.

When the history of President Donald Trump’s use of Twitter is written, there will be a stiff competition for his most destructive, most irresponsible tweet. A strong contender for that less-than-august honor came Thursday morning, when the president of the United States tweeted this:

“House votes on controversial FISA ACT today.” This is the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others?

It is, to be sure, not Trump’s most rhetorically outlandish tweet. It is not an attack on a person or a national or ethnic group. But this tweet is nothing less than an active intervention by the president at a delicate moment in time against the national security of the country he leads. If there is a defense of this, it can be only that Trump may not have understood what he was saying and may simply have been parroting something he heard on Fox News.

The error was as serious as any Trump has made. As Lawfare put it,

For now, let’s leave aside what would otherwise be notable about Trump’s original tweet: the lies in it. There is zero evidence that the Obama administration conducted surveillance against the Trump campaign—much less that it used Section 702 authorities to do so. To the contrary, it is inconceivable that 702 was used as the president alleges. Under normal circumstances, we would spend some time on a malicious presidential lie about the prior administration, his own intelligence community, and the men and women who serve in both. But today, that’s a secondary problem.

For present purposes, the much more urgent matter is that the president here seemed to be at least implicitly opposing reauthorization of 702—and doing so on the day the House of Representatives is to vote on the matter and when the outcome of that vote is uncertain.

Let’s not mince words here: The lapse of Section 702 surveillance capabilities, even for a short time, would constitute a full-fledged national security emergency. The National Security Agency is on record as saying that “collection under FAA Section 702 is the most significant tool in the NSA collection arsenal for the detection, identification, and disruption of terrorist threats to the U.S. and around the world.”

Why did Trump later change his mind?

Obviously at some point, someone in the West Wing or in Justice saw the tweet and had an “oh shit” moment. Then he or another poor soul was deputized to tell Mr. Trump he had to retract the tweet. Since Trump retracts nothing, the second tweet was the best they could get out of him.

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