Where Does FISAgate End Up? Probably Nowhere.
by ANDREW C. MCCARTHY
March 14, 2017
Our political passions and partisanship overwhelm our ability to uncover the truth.
On Capitol Hill last week, lawmakers began rolling up their sleeves to investigate the two components of the controversy that has embroiled Washington since Donald Trump was elected president on November 8: Russian interference in the election and what is now called FISAgate. The two components are interwoven . . . and antagonistic.
If, as Democrats suggest, the Russian interference was significant and there was evidence of Trump-campaign collusion in it, it would have been irresponsible for the Justice Department and the FBI not to investigate, including by monitoring communications under the Foreign Intelligence Surveillance Act (FISA). But if, as Republicans counter, Russian interference was immaterial (some say nonexistent), and there was no real proof of Trump-campaign collusion in anything nefarious, then the "hacking conspiracy" was just a pretext for the incumbent administration to investigate the opposition party's political campaign, a stunning abuse of power.
Where does this all end up? I suspect it goes nowhere.
There is simply too much gray area of disagreement about what happened and what would have been an appropriate response to it. And our thinking is clouded by politics and its inevitable hypocrisy.
For example, during a campaign debate, Donald Trump vowed that if he were to win, he would have Hillary Clinton investigated. At the time, I thought (and said at NRO) that the torrent of condemnation - from the right as well as the left - was ridiculous. This was not, as overwrought critics said, tin-pot dictator stuff; nothing Trump said signaled an intention to use the executive's awesome police powers to persecute political opponents. The critical fact was that there was patent evidence of felony misconduct on Clinton's part - criminality that materially damaged national security and that had nothing to do with opposing Trump politically.
Now comes FISAgate, with its indications that while Trump was merely (and apparently emptily) threatening to investigate his Democratic rival, the incumbent Democratic president was actually investigating Trump, the Republican nominee.
Since some are now backpeddling from the assertions - matter-of-factly made over the last four months - that there really was an investigation, let's be clear. This is not speculation. We know an investigation happened (and may still be ongoing). The only real questions concern the scope and the investigative tactics that have been used: Was there FISA wiretapping or, significantly, its functional equivalent in other forms of monitoring?
The Weekly Standard's Stephen Hayes has best outlined the legitimate sourcing concerns about the claims, mainly by Heat Street, that the Obama administration sought in June, and ultimately obtained in October, Foreign Intelligence Surveillance Act warrants (i.e., FISA court authorization) to monitor communications of Trump associates. So, let's set that aside. Here is the New York Times on March 1:
The F.B.I. is conducting a wide-ranging counterintelligence investigation into Russia's meddling in the election, and is examining alleged links between Mr. Trump's associates and the Russian government.
It echoes the New York Times on January 19:
American law enforcement and intelligence agencies are examining intercepted communications and financial transactions as part of a broad investigation into possible links between Russian officials and associates of President-elect Donald J. Trump, including his former campaign chairman Paul Manafort, current and former senior American officials said.
To this, add new reporting at Circa from Sara Carter and John Solomon. Like the Times, they relate - based on unnamed "U.S. officials" - that the FBI and other intelligence agencies conducted a "counterintelligence probe into Russian efforts to influence the election and curry favor with U.S. figures." We know that this happened because the FBI, CIA, and NSA jointly issued a (not very edifying) report about it. But Carter and Solomon add details to the mix that are significant if true.
First, they report that "ancillary" to the probe was some scrutiny of Trump associates and an investigation of "a computer server tied to Donald Trump's businesses." The server was not physically located in Trump Tower, but it was tied to Trump business headquartered there. The server probe was brief, and a FISA warrant was not sought. Instead, the FBI is said to have resorted to "traditional investigative techniques." I would interpret that to mean it was done as a very preliminary criminal investigation (i.e., not a full-blown investigation, because there was only some vague suspicion, not probable cause of criminality). Carter and Solomon say the agents quickly concluded that "the computer activity in question involved no nefarious contacts, bank transactions or encrypted communications with the Russians."
In October, the reporters say, the Obama Justice Department obtained a warrant from the FISA court "to help further the Russian investigation." It is not clear from the reporting whether Trump associates were targets of this warrant. But we're told: "Officials stressed that there were no intercepts of Trump's phone or emails."
Finally, Carter and Solomon report that there is a high level of frustration on the part of intelligence agents that aspects of their work have been publicized through selective leaking. As I've previously explained, what is learned in national-security investigations that use FISA authority - what the press is calling "counterintelligence" investigations - is never meant to see the light of day. Honorable intelligence agents - which is the vast majority of them - go to great lengths to protect the identities of Americans whose activities are examined in these cases. They are generally not suspected of wrongdoing; the point of such investigations is to figure out what foreign powers are up to relative to U.S. interests. That necessarily involves looking at any Americans they meet or discuss, but it does not mean those Americans have done anything wrong. Thus, revelations that their names have come up in "counterintelligence" investigations can be defamatory.
This is the source of the agents' frustration: After Trump won the election, the Obama administration made efforts to spread investigative information across the intelligence community, outside the tight web of investigators handling the Russia probe. This has encouraged leaking and distorted the public's understanding of what the investigators were doing - which was properly focused on Russia, not politically focused on Trump.
Obviously, it does not help that the president responded to this by alleging in a tweet, "Obama had my ‘wires tapped' in Trump Tower" - another apparent distortion.
What to make of all this?
Yes, There Was an Investigation. No, Russia Did Not ‘Hack the Election'
Well, let's go back to Trump's threat to have Clinton investigated. Many of the same people who claimed it was the end of the Republic as we know it now seem unperturbed by the revelation that the Obama administration was probing Trump's orbit. I have tried to point out this blatant hypocrisy.
With hypocrisy, though, there is always a corollary. If we are to avoid being hypocrites ourselves, we have to strive for consistency. In that vein, if there was nothing inappropriate in Trump's threat because it was based on plausible evidence that Clinton had violated classified-information laws, there would similarly be nothing inappropriate in the Obama administration's investigation of Trump associates if there was plausible evidence of wrongdoing, whether criminal activity or acts against the national interest.
But was there? Alas, on this matter, too, political passion overwhelms our capacity to be analytical from the standpoint of law and intelligence.
The suspected wrongdoing here is twofold: 1) Russia materially interfered in the election, and 2) Trump, through associates with varying and attenuated connections to his campaign, colluded in the Russian interference. There is no proof that either of these things is true. Yet, the lack of fire does not mean a lack of smoke - of suspicion. It is suspicion, not proven misconduct, that triggers investigations - the point of which is to probe what you suspect.
Vladimir Putin's regime attempted to influence the election, just as the Russians and the Soviets before them have always attempted to influence Western elections and policies that are sure to affect their interests. And people in Trump's orbit have business connections to people in Putin's orbit. The connections of former Trump-campaign manager Paul Manafort to Putin's puppet party in Ukraine are disturbing; so has been Trump's indulgent attitude towards Putin, a murderous anti-American dictator.
Now, add to this smoke what is truly incendiary in this equation: our politics.
From the Democrats' standpoint, Trump is a grotesque solipsist, dangerously unfit for the presidency. So don't tell them that Hillary Clinton ran foreign policy for an administration that serially appeased Putin. Don't remind them that it was Mrs. Clinton's scandalous e-mails, not John Podesta's comparatively benign e-mails, that had a real impact on the election. And don't bother pointing out that, whatever business interests Trump associates may have with Russians, they never managed to rake in piles of cash while paving the way for Russia to acquire 20 percent of U.S. uranium reserves, as did Clinton and her foundation. They are Trump-deranged, and they will hear none of it.
And the political hostility is not found only on the left. There are many on the right whose reluctance (or worse) about Trump has understandably been exacerbated by his Putin rhetoric, which has ranged from weirdly solicitous to repugnant. In addition, they are not buying the line that "you can't take Trump literally." They think (I know this sounds crazy) that when a president speaks, he should speak truthfully (at least within the forgiving leeway of diplomacy). Plus, they are disturbed by Trump's likely untrue statement that Obama tapped him, even if it was leveled within the context of a true allegation that the Obama administration investigated Trump associates connected to Trump's campaign.
The upshot of this is that any allegation about diabolical Russian plots and unseemly Trump encouragement of them is certain to find a receptive audience - an audience more than willing to give the allegation disproportionate credence. In light of the question we're considering - What quantum of suspicion should be necessary to trigger an investigation? - that ends up mattering.
The question of whether to commence an investigation of suspected but unproven misconduct is always a judgment call. There are certain investigative tactics that agents and Justice Department lawyers are not permitted to use in an investigation without satisfying settled legal standards. For instance, you need probable cause to get a search warrant or arrest a suspect. But simply to open an investigation? To poke around a bit, exploit the evidence that might be at your fingertips without seeking a court's permission to analyze it? There is no realistic check on that - at least not when we are in the ambit of national security, where investigations are routinely triggered in the absence of evidence that a crime was committed.
In the best of times, a judgment call is one we won't all agree about. This ain't the best of times; this is highly charged politics. We are never going to have consensus on whether there was a sufficient degree of suspicion to validate an Obama Justice Department investigation of potential Trump collusion in what the spooks call Russian "cyber espionage."
On the other hand, it is perfectly obvious now that Russia did not "hack the election," and thus that whatever connections there were between the Trump camp and the Putin camp, the election was not stolen: The hacking was immaterial, and there is no evidence that Trump people were complicit in it.
Plus, remember that the alleged ties between Trump associates and Russia were known to the electorate in November, as was Trump's curiously kindly disposition toward Putin. Yet, in the closing days of the campaign, in the course of scalding Trump for suggesting that the election might be rigged, it was none other than Hillary Clinton who adamantly insisted that the election process was wholly legitimate. She and the Obama administration maintained that all was on the up-and-up. The election process suddenly became potentially illegitimate . . . when, and only because, she lost. That complaint is partisan politics masquerading as national-security seriousness.
So, we will never have resolution on whether there should have been an investigation. And in any event, the suspicion that was under investigation - namely, the "Russia election-hacking" plot, in which Trump allegedly conspired - was not reality.
Wiretaps, Signals Intelligence, and ‘Intercepted Communications' - Mysteries Abound
That leaves us with the final question of what investigative tactics were used - a question that might have been relegated to insignificance had President Trump not claimed that President Obama had him wiretapped.
Along with its likely inaccuracy, his claim points to two additional problems. First, and of most interest to the media, is the suggestion that President Obama might have done something highly inappropriate, if not flat-out illegal - an intimation flowing from a rash accusation that, as president, Trump had the means to confirm before tweeting.
Second, and of least interest to the media, is the appearance that the notoriously politicized Obama Justice Department did its own tampering with the election: It seems to have applied an extraordinarily low threshold of suspicion to justify investigating Trump and his associates on a dubious plot, when it was simultaneously applying an absurdly high burden of proof to justify whitewashing a gravely serious criminal case against Clinton.
Still, even here, facts are elusive. What each side is convinced happened - and will probably stay convinced happened - depends on its predispositions about the players.
The question seems to have come down to eavesdropping. That in itself is maddening: Eavesdropping is done by the executive branch, which Trump now runs. It is fair to wonder why we are speculating and combing press reports that may have political agendas when the answers should be ready to hand. There is no need to disclose intelligence secrets. The question is: Did any part of the Obama administration make requests to monitor, or did it actually monitor, Trump or his associates?
I use the term "monitor" advisedly. There seems to be some linguistic gamesmanship afoot, a Jesuitical distinction between "wiretapping" and "intercepted communications." I suspect this reflects a subtle distinction between, on the one hand, domestic FISA surveillance, and, on the other hand, the gathering of global signals intelligence (only some of which is done under FISA) conducted by the NSA.
In a nutshell, the sweep of intercepted communications collected for purposes of foreign intelligence is far broader than domestic FISA surveillance of suspected "agents of foreign powers." The media and Democrats, after hyping for four months the notion of an aggressive investigation against Trump and his associates that included "wiretapping" and examining "intercepted conversations," is now downplaying that very possibility. The political winds have shifted, so there's now a perception that the investigation of a presidential campaign is a bigger scandal than "Russian-hacking" proved to be.
Consequently, the Left is now beating back reports that the Obama Justice Department 1) marched into the secret FISA court with surveillance applications targeting Trump associates, perhaps even Trump himself, on the ground that they were Russian agents; and 2) that the DOJ was eventually permitted to wiretap at least some Trump associates.
Let's set aside the new reporting from Sara Carter and John Solomon, which maintains that the Justice Department did obtain a FISA warrant in October. It may well be that all the focus on FISA has been something of a head fake.
It is now effectively possible to target people for FISA surveillance without having to ask the FISA court for permission. There are expansive FISA orders that authorize the NSA to gather and store millions of communications that target, or merely relate to, 193 different countries. The content is accessible if it is pertinent to one of thousands of "foreign intelligence requirements" established by the president and the intelligence community, based on American security needs and national interests.
This is as it should be. It's a dangerous world out there; hostile regimes are spying on the U.S. and seeking to undermine American interests the world over. We need aggressive foreign intelligence-gathering. But a by-product is that many Americans are caught up in the surveillance net - even Americans speaking to other Americans inside the U.S. Thousands of these conversations are captured. Most of them are never reviewed. Of those that are (because the Americans are speaking with or about foreign agents who are targeted for investigation), the NSA is supposed to "minimize" the intercepted communications in a way that "masks" the identities.
But the minimization has more holes than Swiss cheese. If the NSA decides that the identity of the American who has been incidentally intercepted must be known in order to fully understand the intelligence value of the communication, it need not be minimized. Moreover, if the attorney general concludes that an American may be acting as an agent of a foreign power, the intelligence community may use that American's identity as a "selection term" when it searches through its trove of captured communications.
Consequently, if the intelligence agencies know that X American person is meeting with certain Russians, it can target those Russians for surveillance and "incidentally" monitor X's communications. And if the attorney general concludes that X is an agent of a foreign power, the NSA's database can be searched to find any of X's intercepted communications - of which there are apt to be many. It is not necessary to get a FISA warrant naming X in order to examine X's communications that have been swept up in foreign surveillance coverage that does not particularize targets.
In effect, it is entirely possible to conduct a "counterintelligence" investigation that quite intentionally accesses intercepted communications of an American without obtaining a FISA warrant that singles out that American for wiretapping. Consequently, the question is not merely whether Trump or his associates (or both) were the targets of FISA applications or warrants. It is whether the intelligence agencies took active steps to access and analyze their intercepted communications - whether through targeted FISA warrants, non-particularized FISA authorizations, or other foreign-intelligence-gathering streams.
Assuming that there are such intercepted conversations, as the New York Times has reported, the question is whether people in the Trump camp just happened to be incidentally monitored because they were dealing with some Russians of interest to the intelligence community, or whether they were targeted to have their communications monitored or at least analyzed after the fact.
It is a fascinating question. And as with the other fascinating questions, we will probably never get a definitive answer. What you'll get is this: The Russians tried to meddle in the election, but the Russians did not "hack the election" or affect its outcome. As for the rest of it, nothing to see here, move along.
A version of this piece also appeared on National Review Online.