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Trump's Wiretapping Charge Could Contain Some Explosive Truth
http://www.truthdig.com/report/item/trumps_wiretapping_charge_could_contain_
some_explosive_truth_20170314/
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Posted on Mar 14, 2017
By Scott Ritter
Michael Flynn resigned as Donald Trump's national security adviser on Feb.
13. (Gage Skidmore (https://www.flickr.com/photos/gageskidmore/30020745053)
/ CC BY-SA 2.0 (https://creativecommons.org/licenses/by-sa/2.0/) )
"Let me tell you: You take on the intelligence community-they have six ways
from Sunday at getting back at you." -Senate Minority Leader Chuck Schumer
to MSNBC host Rachel Maddow, Jan. 3, 2017
Chuck Schumer's comments should have sent a chill down the spine of all
law-abiding American citizens concerned about the future of their country,
and not in the way Rachel Maddow, the Trump-bashing MSNBC host, was aiming
for when she invited the Democratic senator from New York, who also serves
as the Senate minority whip, to appear on her show.
The context of Schumer's comments was related to a war of words raging
between then-President-elect Donald Trump and the United States intelligence
community about allegations that Russia sought to influence the outcome of
the 2016 presidential election in favor of Trump. The Trump campaign likened
the intelligence report about Russian electoral interference to the CIA's
deeply flawed assessment about Iraqi weapons of mass destruction on the eve
of the invasion and occupation of Iraq by U.S.-led forces in 2003. Prior to
Schumer's appearance on "The Rachel Maddow Show," Trump himself tweeted
disparaging remarks about an "intelligence briefing on so-called Russian
hacking" being delayed, adding, "perhaps more time needed to build a case."
Schumer's comments appeared to be a not-so-veiled threat to Trump that if he
took on the dark forces of America's intelligence services, he would be
doing so at his own risk. Ten days later, this threat became reality when an
unnamed "senior U.S. government official" leaked intelligence information to
The Washington Post, alleging that Trump's pick for national security
adviser, Michael Flynn, spoke with the Russian ambassador to the United
States, Sergey Kislyak, on Dec. 29, 2016-the same day President Obama
expelled 35 Russian diplomats in retaliation for alleged Russian
interference in the 2016 presidential election and announced a new round of
economic sanctions linked to this interference. The existence of this phone
call, when combined with other allegations concerning Flynn's close ties to
Russia and the fact that Flynn was less than forthright when discussing the
matter with Vice President Mike Pence, doomed Flynn's tenure as Trump's
national security adviser. [Editor's note: On Monday, the Kremlin alleged
that Kislyak also met with Hillary Clinton's team
(http://www.telegraph.co.uk/news/2017/03/13/hillary-clintons-team-met-russia
n-ambassador-says-kremlin-spokesman/) during the presidential campaign.]
READ: We Should Call Trump's Bluff for a Watergate-Style Inquiry
(http://www.truthdig.com/report/item/hacking_the_election_we_should_call_tru
mps_20170312)
Flynn's conversation with Kislyak took on a life of its own. Flynn's initial
denial about sanctions not having been a subject of discussion, echoed by
Pence, became a topic of widespread media speculation that Flynn had
violated the Logan Act
(http://legal-dictionary.thefreedictionary.com/Logan+Act) , a 1799 law that
prohibits private citizens from engaging in the foreign affairs of the
United States without its permission. There was even speculation that
Flynn-who in 2015 had a paid speaking engagement in Russia, sponsored by RT
(a state-run Russian television network), and was seen in a photograph
seated next to Russian President Vladimir Putin at a gala dinner-somehow
colluded with the Russians in their efforts to tip the 2016 presidential
election in Trump's favor.
Media speculation and unsubstantiated allegations took a back seat when, on
Jan. 26, then-acting Attorney General Sally Yates told White House counsel
Don McGahn that, contrary to Flynn's public claims, the issue of economic
sanctions had in fact been a subject of discussion between Flynn and the
Russian ambassador. Yates asserted that Flynn's distortion of the truth left
him vulnerable to blackmail and as such Flynn posed a national security
threat. President Trump was briefed on the Yates information, and McGahn
subsequently conducted an internal inquiry that concluded Flynn had broken
no laws in his contacts with the Russian ambassador.
On Feb. 9, The Washington Post, acting on anonymously sourced intelligence
leaks, reported that nine former and current U.S. government officials had
confirmed the existence of a transcript that showed Flynn and Kislyak had
indeed discussed sanctions during their Dec. 29 phone conversation, but not
in any worrisome context. According to the transcript, Flynn had not made
any promises about the lifting of sanctions imposed on Russia by the Obama
administration, but rather indicated that such sanctions would not
necessarily be continued under a Trump administration that was seeking to
improve U.S.-Russian relations. The internal White House investigation had
been vindicated-Flynn had not committed a crime or behaved in any
inappropriate manner. What he had done, however, was mislead the vice
president, and for this action Flynn was forced to resign.
The scandal surrounding Flynn's resignation led House Intelligence Committee
Chairman Devin Nunes, a Republican, to claim that leaks about Flynn's phone
calls only could have come from the "very highest levels of the previous
administration." Trump upped the ante by accusing former President Barack
Obama, via tweet, of personally ordering wiretaps against Trump and his
campaign. The fallout from Trump's assertion has been explosive, with many
pointing to the unsubstantiated nature of his accusation as evidence of the
new president's lack of fitness for office. Lost in the noise and confusion
of the outrage among Democrats and Obama-era intelligence officials (and
some Republicans) that followed Trump's incendiary charge, however, is that
the existence of the Flynn transcript sustains the general premise, if not
the precise specifics, of the Trump wiretap claim.
The existence of a transcript of a conversation between Flynn and Kislyak,
in fact, indicates that Flynn was either the subject of a wiretap warrant
authorized under the Foreign Intelligence Surveillance Act
(https://fas.org/irp/agency/doj/fisa/) (FISA) of 1978, or a Title III
action under the Omnibus Crime Control and Safe Streets Act
(https://transition.fcc.gov/Bureaus/OSEC/library/legislative_histories/1615.
pdf) of 1968 (or a specific action ordered by the president and certified
by the attorney general, bypassing the need for a FISA warrant, pursuant to
Chapter 36 of Title 50 of the U.S. Code
(https://www.law.cornell.edu/uscode/text/50/chapter-36) ), in which case
Trump's claims of his campaign being "tapped" by the Obama administration
are not as far-fetched as some think.
Another possibility is that Flynn's conversations were recorded as part of
legitimate intelligence collection routinely undertaken by U.S. intelligence
agencies of foreign entities (such as the Russian ambassador to the United
States) who are deemed to be of ongoing intelligence interest. Such
collection activity has been going on for decades, and the procedures
involved are well known to all who participate in such, especially with
regard to protecting the rights of any American citizens who are caught up
in the collection. Once it becomes known that the conversation of an
American citizen is being collected by U.S. intelligence agencies, the act
of recording that conversation must cease immediately. If for any reason the
conversation was recorded (i.e., automated collection), then specific
measures must be taken after the fact to "minimize" any and all information
that would identify the American citizen in question.
There is simply no provision under U.S. law, above and beyond a FISA
warrant, Title III action or direct presidential intervention certified by
the attorney general that would permit Flynn's conversations with the
Russian ambassador to be recorded, evaluated and acted on by U.S. government
officials such as Yates. The mere fact that a transcript of Flynn's phone
conversations exists represents a violation of U.S. law. That U.S.
government officials accessed these transcripts and acted on them in an
official capacity expands the scope and scale of this legal transgression by
an order of magnitude. The leaking of the existence and contents of the
Flynn transcript to the media by U.S. government officials for political
purposes is as reprehensible as it is illegal, and represents a frontal
assault on the very foundation of American society, grounded as it is in the
principle of protecting individual civil liberties.
The notion that U.S. government officials would knowingly and willfully
violate laws designed to protect constitutionally protected rights should
rightfully outrage everyone. That these violations were committed for
partisan political purposes designed to undo the lawful results of a binding
election (for instance, by undermining the appointment of a controversial
and unpopular national security adviser) represents an attack on the very
democratic processes that define the United States.
READ: The Dance of Death
(http://www.truthdig.com/report/item/the_dance_of_death_20170312)
The fact that this transcript exists, however, represents a curiosity.
Intelligence collection against a target like the Russian ambassador is not
a "one-off" activity subject to errors of this nature and magnitude. The
Russian ambassador has more than likely been the subject of a standing
intelligence collection requirement over the course of many years. Given the
fact that the Russian ambassador is in near-constant contact with American
citizens, including members of Congress and other officials, the U.S.
intelligence community is not only well versed but also well practiced in
the legalities and methodologies associated with the "minimization"
requirements mandated by law when the Russian ambassador speaks with a U.S.
citizen.
By his own account, Flynn took Kislyak's call from a beach-side resort in
the Dominican Republic, using a cellphone that apparently made use of
encryption (the Washington Post story speaks of "digital packets" of
information from Flynn's phone call with Kislyak being intercepted by the
FBI). The Post indicates that the FBI conducted the interception, and that
the agent involved prepared a "brief intelligence report" based upon the
contents of that call, indicating that the FBI had defeated any encryption
used by Flynn. While such a report would be the norm, it would, in
conformity with applicable law, contain no information that could identify
Flynn as being a party to that call. In short, the FBI intelligence report
could not have served as the basis for Yates' White House intervention on
Jan. 26. The FBI would have been prohibited by law from producing such a
report, and Yates would have been prohibited from taking any official action
based upon the existence of such a report.
The existence of a Flynn-Kislyak transcript that identifies Flynn by name
represents a deviation from the normal practices of U.S. law enforcement and
intelligence that is not readily explained. If the Flynn conversation was
collected under FISA authority, then Trump is correct in his charge that his
campaign was the subject of wiretaps authorized by the Obama administration.
To date, the existence of any such FISA authority has been denied by U.S.
officials, including former Director of National Intelligence James Clapper.
Likewise, if the Flynn transcript was the byproduct of foreign intelligence
collection activities by U.S. intelligence agencies, the fact that it exists
in a form that identifies an American citizen by name would mean that the
transcript was produced outside channels routinely subjected to the kind of
legal oversight designed to protect the constitutional rights of American
citizens. The Washington Post states that the FBI, and not the CIA or the
National Security Agency, was responsible for intercepting the Flynn
conversation with Kislyak. It is highly unlikely, however, that the FBI,
well versed in American law as it is, would be involved in the preparation
of a transcript of an intercepted conversation that so blatantly violated
the constitutional rights of an American citizen, let alone allow the
existence of that conversation to become public.
There are some alternative explanations for the existence of the Flynn
transcript that do not involve the FBI engaging in massive violations of the
law. The United States routinely coordinates with the intelligence services
of allied nations regarding the collection of conversations of persons of
interest, including American citizens. If a conversation was collected by a
non-U.S. intelligence agency, such as the British or Dutch intelligence
services (nations that have been mentioned in reports about Trump-related
intelligence shared with the United States), it would not be subjected to
minimization at the source of the collection. Once such a transcript came
into the possession of an American law enforcement or intelligence agency,
however, minimization standards would have to be applied by the agency
receiving the intelligence report.
WATCH: Chris Hedges and Poet Linh Dinh on the 'Irrevocable Decline of the
American Empire'
(http://www.truthdig.com/arts_culture/item/chris_hedges_irrevocable_decline_
american_empire_poet_linh_dinh_20170313)
It seems likely that the transcript of Flynn's phone call with Kislyak was
produced from a collection activity operating outside FBI control, and
probably operating outside U.S. soil-for instance, from the Dominican
Republic itself. The U.S. intelligence community, in coordination with a
supporting government's intelligence service, has the capacity to intercept
Flynn's phone calls in a manner that does not implicate either the FISA
framework or other intelligence collection activities subjected to legal and
legislative oversight.
The most likely candidate for this sort of role would be Britain's
Government Communications Headquarters (GCHQ)-the equivalent of America's
NSA. Indeed, the surprise resignation of the director of GCHQ, Robert
Hannigan, on Jan. 23-three days before Yates presented evidence of Flynn's
intercepted conversation to the White House, has led some circles to
speculate that GCHQ played a role in the interception of the Flynn-Kislyak
conversation. GCHQ has long been known to target the communication cables
used by Cable & Wireless Communications, a Caribbean service provider that
operates in the Dominican Republic, where Flynn's beach-side cellphone
conversation took place. Information collected from these cables would be
stored at GCHQ in the U.K., and as such be accessible by GCHQ analysts. It
seems increasingly likely that Hannigan played a role in retrieving the
Flynn-Kislyak intercept and turning it over to the United States.
If Hannigan had turned this transcript over through official channels, it
would have been subjected to mandatory minimization under U.S. law and, as
such, could not have been the basis of the Yates intervention on Jan. 26.
This eliminates the FBI, the Department of Justice and the NSA as viable
conduits for any Flynn-related intelligence sourced to GCHQ. If, however,
Hannigan provided the Flynn transcript to the CIA using back channels, then
John Brennan, CIA director under Obama, emerges as the leading culprit
behind the leak-breathing life into Nunes' assertion that the Flynn leak
could only have come from the "highest levels" of the Obama administration.
Hannigan's resignation from GCHQ was of such a sudden nature that the only
plausible explanation is the kind of scandal that would be generated by the
revelation of a GCHQ role in facilitating the abuse of intelligence
information for the purpose of undermining the legitimacy and authority of
the newly elected president of the United States. Hannigan's resignation
occurred a mere three days prior to British Prime Minister Theresa May's
visit to the White House on Jan. 26-the same day Yates briefed White House
counsel on the Flynn transcript. A simple "connect the dots" exercise would
have May cleaning house before any meeting with Trump in which the fact of
such an explosive relationship would have most likely been raised.
Trump's incendiary, and still publicly unsubstantiated, claim that the Obama
administration ordered wiretaps of his campaign has attracted the attention
of some members in Congress. Nunes himself has stated that his committee
"will make inquiries into whether the government was conducting surveillance
activities on any political party's campaign officials or surrogates, and we
will continue to investigate this issue if the evidence warrants it." Sens.
Lindsey Graham and Sheldon Whitehouse have requested that the Justice
Department provide the Senate Judiciary Committee's Subcommittee on Crime
and Terrorism with "copies of any warrant applications or court orders .
related to wiretaps" of the Trump campaign, noting that they "would take any
abuse of wiretapping authorities for political purposes very seriously."
By focusing their collective efforts on warrants and court orders, however,
the various congressional oversight committees the American people count on
to conduct effective, bipartisan oversight of U.S. law enforcement and
intelligence activities may be barking up the wrong tree. What the senators
and House members should be asking for is an accounting of all interaction
between the CIA and GCHQ that transpired between Dec. 29, 2016, and Jan. 26,
2017, with a particular focus on the activities of both Brennan and Hannigan
during this time. Both men should be subpoenaed, as well as Yates and any
and all officials from the CIA, FBI, Justice Department, NSA and GCHQ who
were involved in any manner with the production and provision of the Flynn
transcript to American intelligence, and its subsequent use by U.S.
government officials.
The transcript of Flynn's telephone call with Kislyak needs to be
forensically reverse-engineered, so that the entire chain of custody, from
collector to consumer, and every step in between, is carefully vetted and
assessed. At a minimum, such an investigation should produce indictments of
all officials who knowingly violated Flynn's constitutional right to privacy
by possessing and releasing to the media information that was unlawfully
obtained and retained by U.S. authorities. At most, the investigation will
uncover an abuse of authority to use illegally acquired intelligence in a
manner that would make the Watergate scandal pale by comparison. It also
could uncover wrongdoing by Obama if he had in any way, shape or form been
briefed on the existence of the Flynn transcript and failed to suppress and
investigate its existence.
Schumer has indicated that such an investigation would spell bad news for
Trump. "If it's true," Schumer said, "it's even worse for the president.
Because that means that a federal judge, independently elected, has found
probable cause that the president, or people on his staff . have probable
cause to have broken the law or to have interacted with a foreign agent."
With all due respect to Schumer, he couldn't be more wrong. What a genuine
investigation will show is that the American people have a means of
countering anyone who would deign to abuse their powers and that no
one-president, senator, candidate or "deep state" operative-is above the
law. Even Schumer, as much as he is opposed to Trump's presidency, should
support that.
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