Controversial Spy Law Passes House After Shots From Trump, Who Then Supported It

Jan 11, 2018
Originally published on January 11, 2018 5:15 pm

Updated at 12:20 p.m. ET

A controversial spying law survived in the House after a kerfuffle on Thursday when President Trump took aim at the bill despite his administration's formal support for it.

The House voted to reauthorize snooping provisions known by the Capitol Hill shorthand "Section 702," which are due to expire next week, and to extend the authority for six more years. The Senate would need to vote next in order to preserve them.

The White House supports reauthorization, but Trump escalated the intermittent war with his intelligence agencies on Thursday in a series of Twitter posts that threatened to torpedo the vote.

The controversial law permits U.S. intelligence to surveil Americans without a warrant when they are detected talking with foreigners overseas who were under surveillance.

But that law has become tangled up in the sprawling political imbroglio over Russia's attack on the 2016 election, and Trump resurrected charges that it might have been used to snoop on him.

"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?" he wrote.

Before that he posted: "Disproven and paid for by Democrats 'Dossier used to spy on Trump Campaign. Did FBI use Intel tool to influence the Election?' @foxandfriends Did Dems or Clinton also pay Russians? Where are hidden and smashed DNC servers? Where are Crooked Hillary Emails? What a mess!"

Trump's comments throw together a rat's nest of related, semi-related and unrelated strands from the story and support Republicans' narrative about a "biased" FBI and Justice Department out to get him and protect Hillary Clinton.

And they follow a simmering feud that Trump has waged with the CIA and other intelligence agencies since before he took office.

The Russia story is Byzantine, but the politics are standard: It is a truth vacuum. Many key questions have no answers, and many, if known, are not public — or indeed classified top secret. That gives operators, from the president to his critics, the ability to fudge and conflate what is and isn't factual, what details connect to others, and which connections are legitimate and which are not.

The question Trump posed, for example — did the FBI use the infamous Russia dossier to ask the Foreign Intelligence Surveillance Court to grant warrants for surveillance of Americans — addresses some of the most secret official information in Washington.

Neither the court nor the intelligence agencies involved would confirm publicly whether there had been any warrants, who they might have addressed and upon what evidence they might be based.

There have been press reports that touched on these issues, but nary a peep from officialdom to settle the questions finally.

So with no way for anyone to address whether such attacks are factual, there is no way Trump or his supporters, including Rep. Jim Jordan, R-Ohio, can be contradicted.

In other areas, Jordan and his compatriots on the House Judiciary Committee, including chairman Rep. Bob Goodlatte, R-Va., have seized on solid material that is public. For example, Justice Department special counsel Robert Mueller removed a senior investigator from the Russia unit after discovering text messages between him and another FBI employee that criticized Trump.

The messages, which the Justice Department released to reporters and which Jordan, Goodlatte and others have cited in hearings, form part of their case that this story should be about FBI and Justice Department bias.

Democrats, meanwhile, focused on what they called the disconnect involved with a president of the United States, who controls one of the world's largest intelligence operations, basing his statements about its conduct and authorities on a Fox and Friends TV news report.

The laws of spying

The U.S. intelligence law under which surveillance warrants are issued is different from Section 702. That law, from the FISA Amendments Act, addresses how U.S. spies collect information on foreigners overseas. If the National Security Agency is monitoring a Russian spy within Russia and he gets a call from an American, Section 702 permits U.S. intelligence officers to continue listening without asking a judge for a warrant.

Intelligence community bosses say this capability is an essential part of protecting the U.S. against terrorists and foreign spies. Those officials have broken their traditional wall of silence in order to openly talk with journalists and members of Congress about how important they consider it.

The practice of the U.S. government listening to Americans without a warrant remains controversial. The House voted on, but rejected, a measure on Thursday that would have taken away some of the power that intelligence agencies now enjoy. Section 702 may face other challenges in the Senate.

For the record, Trump's administration supports full reauthorization. In fact, the White House issued a statement on Wednesday evening — hours before Trump's tweet — restating its call for members of Congress to vote for its continued use.

His posts spoke to an earlier chapter in this saga in which Washington took a detour about "wiretapping" and "unmasking," following Trump tweets from March 2017.

Then-FBI Director James Comey and his successor, Christopher Wray, along with Director of National Intelligence Dan Coats, have pleaded with members of Congress not to get caught up in conflating terms and stories about surveillance. American spies use their surveillance powers under strict supervision, they argue, and turning off these authorities would leave the United States blind in places where it needs to keep watch.

"Unmasking" is one example, they argue. When a "U.S. person" is mentioned in official intelligence reporting, the normal practice is for the name — whether of a person, a company, a ship or an airplane — to be redacted. Top so-called "consumers" of intelligence, such as leaders in the FBI or National Security Council, can ask the originators of the report to "unmask" those names.

That is what may have happened in the White House in the final days of the Obama administration. The FBI had begun a counterintelligence investigation in summer 2016 about the Trump camp's potential connections to the Russians who attacked the elections. Under Section 702, monitoring Russians overseas, it may have "swept up," as spies say, some Americans in Trump world.

Later, top Obama officials got intelligence reporting about contacts between retired Lt. Gen. Mike Flynn, Trump's top national security aide, and Russia's then-ambassador to the U.S. As Flynn later admitted in court documents when he pleaded guilty to lying to the FBI that he and the ambassador discussed Flynn's request for Moscow not to retaliate against the punitive measures that President Barack Obama imposed in retaliation for the election interference.

That wasn't known publicly in early 2017, but what did emerge was a report in The Washington Post, based on a leak from the White House, that described Flynn's contact with the ambassador. That angered Trump and the previous Republican critics of Section 702, who complained that political leaders shouldn't use official reporting to take partisan shots in the press.

Comey and NSA Director Adm. Mike Rogers agreed with members of Congress that such leaks were bad — but they also cautioned against conflating Section 702, which addresses collection on foreigners overseas, and the sections of U.S. law that permit the FBI to surveil a foreign agent — like an ambassador — inside the U.S.

Comey said Thursday that he hoped members of Congress would break through the politics to vote to reauthorized Section 702 so that aspect of U.S. surveillance remains in effect.

"Thoughtful leaders on both sides of the aisle know FISA section 702 is a vital and carefully overseen tool to protect this country. This isn't about politics. Congress must reauthorize it," he tweeted.

Trump ultimately hewed back to the administration's position on the bill with a post that concluded his thread on Thursday morning:

"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!"

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