Monday, March 6, 2017

A Guide to the Federal Government’s Wiretap Powers - Wall Street Journal

A Guide to the Federal Government’s Wiretap Powers
Donald Trump claims Barack Obama tapped his phones. How would that have been possible?

President Donald Trump made shocking allegations on Saturday morning that President Barack Obama tapped his phones in the Trump Tower skyscraper. His comments, offered without any proof, fanned interest in a continuing FBI investigation of ties between Mr. Trump’s allies and Russian officials.
The allegations appeared to be taken from media reports alleging the Obama administration received authorization to conduct surveillance on the Trump campaign. How would that have been possible?
Below is guide to the federal government’s power to snoop in criminal investigations and intelligence collection.
Which laws authorize the use of wiretaps in the U.S.?
The Foreign Intelligence Surveillance Act guides the use of wiretaps in service of intelligence collection, while Title III of the Omnibus Crime Control and Safe Streets Act of 1968, also known as the Wiretap Act, dictates the use of wiretaps in criminal investigations.
What’s the difference?
The purpose of intelligence is to gain information about the activities of foreign powers. The purpose of a criminal investigation is to collect evidence to support prosecution in court. Under Title III, federal prosecutors can seek a warrant to tap the phones of suspects of a range of crimes, from bribery to espionage, but only with authorization by the attorney general or other high-level Justice Department officials. They then must satisfy a federal judge that they have probable cause that a crime occurred or will occur, through the filing of applications that detail the “facts and circumstances” of alleged offenses and targets. Prosecutors must also justify the necessity of a wiretap instead of less intrusive investigative techniques.
What is FISA used for?

The Justice Department and the Federal Bureau of Investigation can obtain warrants and orders from a secret court that allows them to conduct surveillance of and collect information about suspected spies and terrorists.
Prosecutors and agents seeking a wiretap under FISA need a warrant from the Foreign Intelligence Surveillance Court to tap a phone in the U.S., with limited exceptions. To tap the phone of a foreigner living in the U.S., they have to demonstrate probable cause to believe the target is an agent of a foreign power. Any employee of a foreign government—like, say, the Russian ambassador—would qualify. But to get a warrant for a U.S. person, they must show probable cause to believe something close to espionage or other national security crimes, like terrorism, occurred, said Julian Sanchez, a senior fellow at the Cato Institute.
How could we know if Mr. Trump’s wiretaps allegations are true?
FISA orders are classified as a general rule, said Todd Hinnen, a partner at Perkins Coie LLP and former acting head of the Justice Department’s National Security Division. But nothing would stop Mr. Trump from declassifying FISA orders, he said.
“If there were such an order regarding Trump obtained by the Obama administration, for instance, President Trump could have it declassified and release it to the press,” he said.
Can FISA be used for more than just wiretaps?
Yes. Under FISA, federal agents can also seek warrants to search premises and orders for certain business records, such as which websites a target visits. Emails generally require a warrant, but the law is unsettled about whether investigators can obtain stored email without one.
Can evidence collected under FISA be used in a regular court?
Yes. The Justice Department can use FISA to gather evidence for criminal prosecution as long as foreign intelligence is a significant component of the investigation, Mr. Sanchez said. But it doesn’t have to be the primary purpose. The government has to tell the defense that it intends to use evidence collected under FISA in a criminal case, offering the defendant a chance to challenge it as unlawful or unconstitutional and try to have it suppressed by a judge.
What is FISA’s back story?
Congress established FISA to guard against surveillance abuses in the name of national security. It passed in 1978 following revelations of an FBI surveillance program that targeted anti-Vietnam War protesters and civil-rights organizers, including Martin Luther King Jr., as well as the Watergate scandal that ultimately forced President Richard Nixon’s resignation.
More recently, a George W. Bush-era program authorized the National Security Agency to wiretap communications between foreigners suspected of having links to terrorist groups and people in the U.S. without a warrant. The government halted the practices for a time, but resumed them in the Bush and Obama administrations after the law governing wiretaps was changed.
—Bob Davis contributed to this article

Does Obama Have Grounds to Sue Trump for Libel? - NBC News

Analysis: Does Obama Have Grounds to Sue Trump for Libel?

President Donald Trump's newest pivot might be his way to divert attention from his own Russia troubles by leveling a Watergate-level conspiracy allegation at former President Barack Obama.
But this latest assertion that Obama ordered illegal surveillance of Trump Tower during the 2016 election — tweeted without evidence — could build and get the president into some legal hot water.
Although the law provides a great deal of leeway for political speech, that protection is not all encompassing. And because of the way Trump has leveled unsubstantiated accusations at Obama, he may have libeled his predecessor.
"He's basically stating that Mr. Obama committed crimes, and to state that somebody has committed a crime when it's false is clearly defamatory," said Benjamin Zipursky, who teaches defamation law at Fordham University Law School in New York.
"The question is: Is there enough evidence of serious reckless disregard to send that case to a jury?" Zipursky added. "I don't know what a court would decide on that, but there is some evidence of recklessness."
It's difficult for public figures to win libel cases. Most courts rule against them because the assumption is that they have chosen to make their lives an open book, which means people will talk about them. But past Supreme Court cases have created a basic standard that seeks to answer two legal questions:
* Was the statement false?
* Did the person know it was false or was he or she reckless about whether it was false?
The answer to both questions must be yes, and that could be a difficult conclusion to draw.
"What the plaintiff has to show is that the defendant has said, written or tweeted something that is a false statement of fact that harms the reputation of the defendant, and because Obama is a public official, you have to show that it was done with some sort of intent to harm," said Jay Wexler, a professor of constitutional law at Boston University Law School.
Despite that high threshold, a fair amount of evidence is beginning to build that Trump might have crossed the legal line.
A senior U.S. official told NBC News that FBI Director James Comey asked the Justice Department over the weekend to publicly reject Trump's claims because they were untrue.
FBI Director James Comey asked Justice Department officials to publicly reject President Donald Trump's claims that former President Barack Obama ordered the wiretapping of Trump Tower, The New York Times reported Sunday. A senior U.S. official confirmed the newspaper's reporting to NBC News.
The Times reported that Comey requested that the Justice Department publicly rebut the president's allegations — which he posted on Twitter without evidence — because the claims are untrue and suggest that the FBI broke the law. Comey's appeal pits him against the president.
Related: White House Calls for Probe, Offers No Proof of Wiretapping
But, The Times added, Comey is having difficulty knocking the story down because there are only a few politically appointed Justice Department officials who could approve a statement, as Attorney General Jeff Sessions recused himself from anything pertaining to the government's investigation into alleged connections between Russia and the Trump campaign.
President Donald Trump leaves the Oval Office to board Marine One at the White House on Friday. Erik S. Lesser / EPA
Despite Comey's request, Trump's White House did not back off on Sunday and called for Congress to investigate.
"President Donald J. Trump is requesting that as part of their investigation into Russian activity, the congressional intelligence committees exercise their oversight authority to determine whether executive branch investigative powers were abused in 2016," White House Press Secretary Sean Spicer said in a statement. He offered no evidence to back up the allegations, which Trump compared to a scandal of "Nixon/Watergate" proportions.
NBC News has found no evidence that would support his claims, which have been flatly dismissed by the previous administration.
An Obama spokesman called Trump's tweets "unequivocally false," and James Clapper, the former director of national intelligence, said on NBC's "Meet the Press" that he had no knowledge of any surveillance of Trump Tower.
Later Sunday, Democrats on the House Judiciary Committee demanded that White House counsel Donald McGahn respond to The Times' report that his office had sought to gain access to what he "believed to be an order issued by the Foreign Intelligence Surveillance Court authorizing some form of surveillance related to Mr. Trump and his associates."
Such an effort would be "inappropriate" and "improper," the lawmakers said in a letter to McGahn obtained by NBC News.
"The independence of the Department of Justice and the FBI is a particular concern when individuals associated with both the Administration and the President's campaign may be the targets of the investigation," the lawmakers said.
Meanwhile, politicians on both sides of the aisle said the White House needed to provide evidence to back up the president's allegations.
"Suffice it to say I don't have any basis — I've never heard that allegation made before by anybody," Sen. Marco Rubio of Florida, a Republican member of the Select Committee on Intelligence, said Sunday.
"I've never seen anything about that anywhere before," Rubio said. "But again, the president put that out there, and now the White House will have to answer as to exactly what he was referring to."
NBC