By Dan Calabrese ——Bio and Archives--March 6, 2017
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First, as Obama officials well know, under the FISA process, it is technically the FISA court that “orders” surveillance. And by statute, it is the Justice Department, not the White House, that represents the government in proceedings before the FISA court. So, the issue is not whether Obama or some member of his White House staff “ordered” surveillance of Trump and his associates. The issues are (a) whether the Obama Justice Department sought such surveillance authorization from the FISA court, and (b) whether, if the Justice Department did that, the White House was aware of or complicit in the decision to do so. Personally, given the explosive and controversial nature of the surveillance request we are talking about – an application to wiretap the presidential candidate of the opposition party, and some of his associates, during the heat of the presidential campaign, based on the allegation that the candidate and his associates were acting as Russian agents – it seems to me that there is less than zero chance that could have happened without consultation between the Justice Department and the White House.
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Second, the business about never ordering surveillance against American citizens is nonsense. Obama had American citizens killed in drone operations. Obviously, that was not done in the U.S. or through the FISA process; it was done overseas, under the president’s commander-in-chief and statutory authority during wartime. But the notion that Obama would never have an American subject to surveillance is absurd. Third, that brings us to a related point: FISA national-security investigations are not like criminal investigations. They are more like covert intelligence operations – which presidents personally sign off on. The intention is not to build a criminal case; it is to gather information about what foreign powers are up, particularly on U.S. soil. One of the points in FISA proceedings’ being classified is that they remain secret – the idea is not to prejudice an American citizen with publication of the fact that he has been subjected to surveillance even though he is not alleged to have engaged in criminal wrongdoing.It appears that what happened was legal, at least in the sense that the Obama DOJ was able to find a judge to sign off on its rationale. That doesn't mean the judge was correct in doing so, but it's nevertheless a checked box. That said, you can take a baldly political action and find a way to rationalize it legally. That doesn't mean you really should have done it, nor does it mean you didn't corrupt an otherwise above-board process as a result. The press is taking the stance that unless Trump can prove this is Watergate, it's a total nonstory - and they will ignore it except to the extent they mock and ridicule Trump for raising it at all. They are taking that stance because the accuser is a Republican and the accused is a Democrat. If that situation were reversed, see above.
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