Watergate Redux

Perimeter defense may not matter if the enemy is inside the gates – Robert Mueller

Did FBI employees participate last year in a sophisticated scheme to illegally surveil members of the new administration for political gain? It sounds sensational and unreal, but recent evidence from those purportedly involved, as well as Congressional testimony, points in this direction. The audacity of such a gambit for political reasons is bad enough, but the fact that it could even occur with all the safeguards in place today to prevent it is stunning. Since the execution of such a crime would have to be highly complex, we thought it useful to describe what is alleged, since if true it would constitute one of the greatest misuses of government power ever.

The presumed mechanism of this scam is intriguing since what the FBI sought was not a typical surveillance warrant from an ordinary judge which allows for direct surveillance of a target (US citizens suspected of crimes). Instead, the FBI sought a warrant under the Foreign Intelligence Surveillance Act (FISA), and the request went to a judge in the secret Foreign Intelligence Surveillance Court (FISC)¹. A warrant from the FISC is necessary only if the Justice Department sees a need to surveil a foreign national person within the US for national security reasons (terrorism, weapons proliferation, espionage, etc.). A FISA warrant would only allow surveillance of a foreign target and has rules to shield/minimize any incidentally-obtained information on US citizens during that surveillance².

If the true target of the surveillance was a US citizen, and not the targeted foreign national person, that US citizen could possibly be indirectly surveilled without having been named in the warrant. The privacy of a US citizen’s communications with any foreign target are protected by strict rules under the FISA law. However, those rules have exceptions if the intercepted communication is highly relevant to a national security crisis or emergency. There are a clear set of approval processes that must also be satisfied before the US citizen’s identity or content can be made known, and then only to a small number of national security officials. When a US citizen’s identity is revealed in this context, it is known as unmasking. This is rarely done, principally because it is rarely needed. The FISA law has been amended several times since 1978 to remain current with technology as well as to increase oversight and privacy protection. It is intentionally designed to suppress both mistakes and misuse and has withstood the test of time up until now.

In this case, texts and emails turned over to Congress by the FBI imply the now infamous “dossier” on President Trump may have been used by the FBI as part (or all) of the justification for obtaining a FISA warrant in October of 2016, despite likely FBI awareness that the dossier was baseless. That justification was so convincingly created as to be taken as legitimate by a FISA court judge. At the time application for the warrant was made, it was not public knowledge (as it is now) that the dossier was paid for with money from the Democrat campaign, nor that much of its content could not be verified. The FISA judge, acting with expectation of the integrity of the petitioner (the FBI), had no reason doubt its authenticity.

Once the warrant was issued, surveillance was initiated on foreign national target(s), which in at least one case is presumed to be the Russian Ambassador to the United States, Sergey Kislyak. A short time later, the intercepted transcript and identity of an American citizen with whom Kislyak was speaking (Michael Flynn) was published in the Washington Post. Using a FISA warrant to conceal the true and nefarious purpose of surveilling a US citizen (for ANY reason) is illegal. There are three potential criminal actions associated with this disclosure:

1. The identity of a US citizen incidental to the surveillance of a foreign national was improperly unmasked.
2. The conversation of a US citizen (not the target of the warrant) was intercepted and improperly proliferated to unauthorized government officials.
3. Both 1 & 2, classified government information, were leaked to the media.

This scheme could only work if those responsible for oversight of the program fail to detect the fraud, and no automatic safeguards in the system are triggered. Also, there must be witting government accomplices who are authorized to grant approvals at significant steps along the way (including approval by the Attorney General). Obviously, those who requested the warrant for an illegal reason must keep their true intent a secret. This would require a multi-person inside operation and could not be accomplished solely by a “lone wolf” rogue employee.

If these events did take place, it is a sophisticated modern-day version of the Watergate scandal. In 1972, members of the Republican campaign attempted to plant listening devices in the Watergate hotel room of Democrat campaign members to surveil their activities for political gain. It was a low-tech operation that ultimately failed, but the intent was to illegally surveil their political enemies. It was this incident that directly led to the creation of the FISA law in 1978 which placed limits and oversight on all forms of government surveillance. However, at its core, FISA does not anticipate subversive activity from high level government officials charged with its oversight. Such corrupt actions by trusted officials effectively turns the law into a weapon against its own people.

It will be difficult for the Justice Department and/or Congressional investigative committees to prove such a conspiracy. First, it is unknown what the exact wording of the original application for the FISA warrant specifically states because it is classified and has not been made public. Also, unlike Watergate, there is plausible deniability present in every element of this scam. The accomplices simply have to say they believed the fabricated evidence used to obtain the warrant (they were “duped”) and were therefore just doing their jobs. Finally, it appears likely that some of these accomplices are still employed by the government and are presently in position to stall or pervert an investigation. Add to all this the fact that numerous politicians, and virtually all of the news media, have been deeply invested for over a year now in the theory of collusion with Russia to affect the election. If this was all just an elegant fraud, they would look rather silly and might do almost anything to avoid embarrassment.

Congress is about to vote on whether to release detailed evidence supporting this alleged crime. Because the FISA process is secret, the evidence is classified, which is why both Congressional and Executive approval is necessary for its release. The next few weeks should be interesting.

¹This special court was established in 1978 by the Foreign Intelligence Surveillance Act (FISA). The court and its judges are set up to operate in secret to protect classified national security information.

² The FISA law additionally states that an “agent” of a foreign power could also be the target of a warrant issued by the FISA court. Under a very complex and rare set of circumstances, this “agent” could potentially be a US citizen.