Charles Krauthammer is suffering. He is having trouble wrapping his head around the idea that any group of individuals running at the level of the Obama administration- lawyers included- could be so stupid as to violate laws that sooner or later would catch up to them. I love listening to the guy, he’s freaking smarter than most, but like my MENSA buddy, these people often overthink the human factor. They believe that nobody can be so human in their ideology that they override their higher functions of reason and common sense.
On the other hand, me and people like me, who have dealt with the true believers on the street, know all too well just how stupid ideology will make you. If not so, how do you explain incidents where gang bangers shoot up other gang bangers even though they know they will be caught? Or jihadis gleefully blowing themselves up for Allah? The common theme for both of them is a shared desire to do something for their version of the greater good. For gangs, it is helping their gang gain dominance, for jihadis it is the goal of dominance for Islam. In politics, Obama and Obama’s acolytes believe their way is the only way and should gain dominance over America, and in that they follow the meme that has identified most far leftist in American history- “The ends justify the means.” It really is that simple.
How bad is it? That depends 0n the truth of what happened, and the sad part is we may never know because the NSA supporters like Nunes are stuck between a rock and a hard place. (He said so in his open statements in the hearings.) They believe in the programs, but are horrified about the abuses. If they hammer the abuses too hard, others- like Senator Paul- will lead the charge to unwind the programs. So what to do? Already, Nunes, who went to the trouble of telling the White House they were under surveillance, is backing down a little. Either it happened or it didn’t, there is no “in between” unless someone said something to him arguing for the big picture instead.
Here’s the fact. Obama is the first black President and a transformational leader (good or bad depending on your politics), so political correctness has protected his and his people’s bad acts for years. It may continue to do so. However, if by some chance someone up there decides that no one is above the law, there is plenty of law that may have been broken, several are sure things. Robert Barnes at Lawnewz lists a number.
What crimes could have been committed? Ironically, for Democrats falsely accusing Attorney General Sessions, perjury and conspiracy to commit perjury, as well as intentional violations of FISA. Rather shockingly, no law currently forbids misusing the power of the presidency to spy on one’s adversaries. What the law does forbid is lying to any judicial officer to obtain any means of surveillance. What the law does forbid, under criminal penalty, is the misuse of FISA. Both derive from the protections of the Fourth Amendment itself. Under section 1809, FISA makes it a crime for anyone to either “engage in” electronic surveillance under “color of law” under FISA without following the law’s restrictions, or “disclose” or “use” information gathered from it in contravention of the statute’s sharp constrictions.
FISA, 50 USC 1801, et seq., is a very limited method of obtaining surveillance authority. The reason for its strict limits is that FISA evades the regular federal court process, by not allowing regularly, Constitutionally appointed federal judges and their magistrates to authorize surveillance the Fourth Amendment would otherwise forbid. Instead, the Chief Justice handpicks the FISA court members, who have shown an exceptional deference to the executive branch. This is because FISA court members trust the government is only bringing them surveillance about pending terror attacks or “grave hostile” war-like attacks, as the FISA statute limits itself to. Thus, a FISA application can only be used in very limited circumstances.
One important reminder about electronic surveillance. Occasionally, a law enforcement officer will hear or see or record information not allowed by the warrant, but incidental or accidental to otherwise lawful surveillance. Their job is to immediately stop listening, stop recording, and to delete such information. This is what you occasionally see in films where the agent in the van hears the conversation turn away from something criminal to a personal discussion, and the agent then turns off the listening device and stops the recording. Such films simply recognize long-standing legal practice.
FISA can only be used for “foreign intelligence information.” Now that sounds broad, but is in fact very limited under the law. The only “foreign intelligence information” allowed as a basis for surveillance is information necessary to protect the United States against actual or potential “grave” “hostile” attack, war-like sabotage or international terror. Second, it can only be used to eavesdrop on conversations where the parties to the conversation are a foreign power or an agent of a foreign power. An agent of a foreign power cannot be a United States person unless they are knowingly involved in criminal espionage. No warrant is allowed on that person unless a FISA court finds probable cause the United States person is knowingly engaged in criminal espionage. Even then, if it involves a United States person, special steps must be taken to “minimize the acquisition and retention, and prohibit the dissemination, of non publicly available information concerning un-consenting United States persons.”
This includes procedures that require they never identify the person, or the conversation, being surveilled, to the public where that information is not evidence of a particular crime. Third, the kind of information sought concerns solely information about a pending or actual attack on the country. That is why the law limits itself to sabotage incidents involving war, not any form or kind of “sabotage,” explicitly limiting itself to those acts identified in section 105 of Title 18 of the United States Code.
This bring us to Watergate-on-Steroids, or #ObamaGate. Here are the problematic aspects of the Obama surveillance on Trump’s team, and on Trump himself. First, it is not apparent FISA could ever be invoked. Second, it is possible Obama’s team may have perjured themselves before the FISA court by withholding material information essential to the FISA court’s willingness to permit the government surveillance. Third, it could be that Obama’s team illegally disseminated and disclosed FISA information in direct violation of the statute precisely prohibiting such dissemination and disclosure. FISA prohibits, under criminal penalty, Obama’s team from doing any of the three.
At the outset, the NSA should have never been involved in a domestic US election. Investigating the election, or any hacking of the DNC or the phishing of Podesta’s emails, would not be a FISA matter. It does not fit the definition of war sabotage or a “grave” “hostile” war-like attack on the United States, as constrictively covered by FISA. It is your run-of-the-mill hacking case covered by existing United States laws that require use of the regular departments of the FBI, Department of Justice, and Constitutionally Senate-appointed federal district court judges, and their appointed magistrates, not secretive, deferential FISA courts.
Out of 35,000+ requests for surveillance, the FISA court has only ever rejected a whopping 12. Apparently, according to published reports, you can add one more to that — even the FISA court first rejected Obama’s request to spy on Trump’s team under the guise of an investigation into foreign agents of a pending war attack, intelligence agents apparently returned to the court, where, it is my assumption, that they did not disclose or divulge all material facts to the court when seeking the surveillance the second time around, some of which they would later wrongfully disseminate and distribute to the public. By itself, misuse of FISA procedures to obtain surveillance is itself, a crime.
This raises the second problem: Obama’s team submission of an affidavit to to the FISA court. An application for a warrant of any kind requires an affidavit, and that affidavit may not omit material factors. A fact is “material” if it could have the possible impact of impacting the judicial officer deciding whether to authorize the warrant. Such affidavits are the most carefully drawn up, reviewed, and approved affidavits of law enforcement in our system precisely because they must be fully-disclosing, forthcoming, and include any information a judge must know to decide whether to allow our government to spy on its own. My assumption would be that intelligence officials were trying to investigate hacking of DNC which is not even a FISA covered crime, so therefore serious questions arise about what Obama administration attorneys said to the FISA court to even consider the application. If the claim was “financial ties” to Russia, then Obama knew he had no basis to use FISA at all.
Since Trump was the obvious target, the alleged failure to disclose his name in the second application could be a serious and severe violation of the obligation to disclose all material facts. Lastly, given the later behavior, it is evident any promise in the affidavit to protect the surveilled information from ever being sourced or disseminated was a false promise, intended to induce the illicit surveillance. This is criminalized both by federal perjury statutes, conspiracy statutes, and the FISA criminal laws themselves.
That raises the third problem: it seems the FISA-compelled protocols for precluding the dissemination of the information were violated, and that Obama’s team issued orders to achieve precisely what the law forbids, if published reports are true about the administration sharing the surveilled information far-and-wide to promote unlawful leaks to the press. This, too, would be its own crime, as it brings back the ghost of Hillary’s emails — by definition, FISA information is strictly confidential or it’s information that never should have been gathered. FISA strictly segregates its surveilled information into two categories: highly confidential information of the most serious of crimes involving foreign acts of war; or, if not that, then information that should never have been gathered, should be immediately deleted, and never sourced nor disseminated. It cannot be both.
Recognizing this information did not fit FISA meant having to delete it and destroy it. According to published reports, Obama’s team did the opposite: order it preserved, ordered the NSA to search it, keep it, and share it; and then Obama’s Attorney General issued an order to allow broader sharing of information and, according to the New York Times, Obama aides acted to label the Trump information at a lower level of classification for massive-level sharing of the information. The problem for Obama is simple — if it could fit a lower level of classification, then it had to be deleted and destroyed, not disseminated and distributed, under crystal clear FISA law. Obama’s team’s admission it could be classified lower, yet taking actions to insure its broadest distribution, could even put Obama smack-middle of the biggest unlawful surveillance and political-opponent-smear campaign since Nixon. Except even Nixon didn’t use the FBI and NSA for his dirty tricks.
No, no he didn’t. Would he have? He tried to get the IRS to target his political enemies with no success- unlike Obama’s IRS led by Lerner and Sarah Ingram Hall (and others). So Nixon is no angel, but Obama’s abuses, if history allows the truth to be told, will knock Nixon off the “worst President ever!” pedestal permanently.
Worse, there is a good chance they will get away with it. I’m convinced now Comey is compromised. He lied in his open testimony, giving off all the “tells” of a man who wanted to be anywhere but where he was. Rogers just looked pissed. Either he is an honorable man who is beyond his depth, or a man who realizes things are out of control and he can’t keep the lid on it. Imagine realizing your entire crew is doing bad things and either you knew and hoped it wasn’t that bad or worse, you didn’t know and now realize it is truly really, really bad.
Nunes says people have come forward who maybe not in the leadership to give him reports indicating Trump’s team was targeted. That could mean that there is a group out there who want to suggest to Nunes that they would be far better witnesses than suspects. Good. Maybe the fear of Trump’s anger is motivating them to do the right thing. I am convinced no blue suit wearing, big house in the suburbs bureaucrat is willing to spend ten years in gen pop inside some federal pen in Kansas! It should be put out there by the Trump administration that anyone not cooperating with an investigation is going to end up there. I’m betting the witness line is going to fill up!
Sadly, the DC insiders either can’t understand what happened or refuse to admit things have gone too far under Obama. Mollie Hemingway at the Federalist is an exception. She gets it. When she was on Fox the other night she was nearly leaping out of her chair so she could jump on AB Stoddard’s dismissive tone about the whole thing. She too is willfully avoiding the scandal. Even if ONE Trump campaign member is targeted it is miles beyond anything Nixon did.
Here is Hemingway’s article from the Federalist.
In the last three months of the Obama presidency, significant personal information from and about the Trump transition was collected and widely disseminated at intelligence agencies, according to House Intelligence Committee Chairman Devin Nunes.
Dozens of intelligence reports provided to Nunes by an unnamed whistleblower were floating around during the sensitive transition period following the election, he said. The information collection itself may have technically been legal, but the failure to properly mask the information “alarmed” the California congressman, who notified the White House of the surveillance and dissemination of information on Wednesday afternoon.
Many of the reporters present didn’t seem to grasp the significance of what Nunes revealed. You can — and should — watch that press conference here.
Nunes began his remarks by reiterating his Monday request that anyone with information on surveillance of Trump or his team come forward. “I also said while there was not a physical wiretap of Trump Tower, I was concerned that other surveillance activities were used against President Trump and his associates.” While Nunes’ earlier refutation of Trump’s wiretap claim received outsize attention by the media, his concern about other surveillance did not.
He then dropped the bombshell: “First, I recently confirmed that on numerous occasions, the intelligence community incidentally collected information about U.S. citizens involved in the Trump transition. Second, details about U.S. persons associated with the incoming administration, details with little or no apparent foreign intelligence value, were widely disseminated in intelligence community reporting. Third, I have confirmed that additional names of Trump transition team members were unmasked. Fourth and finally, I want to be clear, none of this surveillance was related to Russia or the investigation of Russian activities or of the Trump team.” Again:
1) Information was collected on the Trump team by Obama administration agencies.
2) This information had no reason to be shared in intelligence reports to Obama officials.
3) Obama officials may have flouted legally required attempts to minimize and mask personal identifying information.
4) This had nothing to do with Russia.
He later explained that these reports were related to Foreign Intelligence Surveillance Act-permitted information collections. Such collections of information on foreign sources require hiding and protecting information about U.S. citizens incidentally picked up during the process when disseminating reports on information gleaned. He even referenced how this reminded him of the trouble the spy agencies got in when failing to mask members of Congress they routinely picked up while spying on Israel. So his concern is not just that the personal identifying information was not masked, but that there appeared to be little or no foreign intelligence value in the spreading of information regarding the political opponents of the previous administration.
Remember, as Krauthammer can’t grasp, the people in charge of our government for the last eight years believed that the ends justified the means. Even the early ATF “Fast and Furious” scandal was full of illegal or questionable activity (which someone in the Trump administration needs to investigate and arrest the violators). The whole plan was to create a false story- that American gun stores were selling weapons to the Mexican cartels- so that the federal government could attack the second amendments rights of citizens. The operation was never to act as publicly stated, and it got two agents and over two hundred Mexicans killed with the guns they let “walk” into Mexico’s drug cartel. (Senator Feinstein was also in the loop, as she pushed already prepared anti-gun legislation- so this corrupt was THROUGHOUT government!)
Frankly, that should have been enough to send the Obama administration packing…but Holder simply refused to cooperate, lied to Congress and was held in contempt. And still served Obama because he was…politically correct protected. Now he’s getting rich screwing with the Trump administration…so why not do bad things?
So when Krauthammer is reluctant to accept that Obama’s people who spy on an incoming administration in order to undermine it and protect Obama’s legacy, I say “DUDE WAKE UP!” Of course they would! Why not? The chances of a downside were minimal, the upside- destroying Trump before he got going- was huge!
My worry is Nunes and the rest will buckle under the pressure and sweep this away “for the greater good” of the programs. Or, and this is the scary part, the NSA simply pulls up the data on Nunes and blackmails him. Don’t think they have it? Watch this.