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Deep State Dissonance

Julian Sanchez

You couldn’t ask for a clearer illustration of the Trump
adminstration’s incoherent stance on intelligence surveillance.
Late Wednesday night, the White House released a statement urging the House to reauthorize the FISA
Amendments Act
, the controversial law authorizing warrantless
electronic surveillance of foreigners’ communications, and opposing
an amendment cosponsored by Reps. Justin Amash (R-Mich.) and Zoe
Lofgren (D-Calif.) that would require FBI agents to obtain a
warrant before searching for Americans’ messages in the vast
database created under the authority.

Just hours later, apparently reacting to a segment on Fox News, however, Donald Trump appeared to
condemn the very legislation his administration had just
endorsed:

About 90 minutes later—presumably following frantic appeals from staffers and Hill
allies
—Trump reversed his seeming reversal:

It’s worth pausing for a moment to note that nearly
everything in both of these tweets is wrong. Thursday’s vote
in the House was on reauthorization of the FISA Amendments Act of
2008—section 702 of which provides for the targeting of
foreigners—not the underlying FISA statute passed in 1978.
Wiretap orders for former Trump campaign officials Paul Manafort
and Carter Page were obtained under that original FISA authority,
not section 702, and those orders don’t appear to have
covered the time they were actually working for the campaign. It
remains unclear what role, if any, 702 has played in the
investigation into Russian election interference currently being
spearheaded by special counsel Robert Mueller. Since surveillance
under 702 does not require case-by-case approval by the secret
Foreign Intelligence Surveillance Court, wiretaps conducted
pursuant to that authority would not have needed any
“help” from the infamous Steele dossier. Finally, while
CNN has reported that the dossier was cited in
at least some FISA applications, there is no evidence that it was
the primary basis for the warrants that ultimately issued: Most
experts seem to agree such a dossier would likely have been used
as, at most, one of multiple corroborating sources for any facts
alleged in the applications.

The follow-up tweet is also off base, however. A provision
targeting the procedures for “unmasking” the identities
of Americans swept up in 702 surveillance was part of an
earlier version of the reauthorization bill, but it was dropped
from the language voted on by the House on Thursday. And while
section 702 does indeed require that the targets of warrantless
surveillance be foreigners located abroad, it can be used to target
any foreigner—not just “bad guys”—as long
as it’s for a valid intelligence purpose, and it is not
limited to their foreign communications. Indeed, the central
controversy over the bill centers on the FBI’s ability to
conduct “backdoor searches” in the vast 702 database
seeking communications between those foreign targets and Americans.
Opponents of the Amash/Lofgren amendment during the ensuing House
debate even argued that 702 surveillance would be
“crippled” if FBI agents could not routinely conduct
such searches—casting them not as peripheral, but essential
to the intelligence value of the authority.

There’s a glaring
contradiction in the administration’s attitude toward its own spy
agencies.

Leave those policy details aside for the moment, however. These
conflicting messages only shine a spotlight on the longstanding
contradiction between the adminstration’s words and actions
when it comes to intelligence surveillance.

For the past year, Donald Trump has routinely attacked his own
intelligence community as a den of vipers eager to abuse their
powers to meddle in politics, at one point even comparing the intelligence agencies to Nazis.
He has (without apparent basis) accused them of illegally
wiretapping his offices at Trump Tower, of carrying out a
“politically motivated hoax” investigation at the
behest of Democrats, and (more plausibly) of illicitly leaking
intercept transcripts to the press. His allies in the
media—and even some in Congress—have zealously echoed
this narrative of a treacherous “Deep State” committed to undermining the
Trump administration by any means necessary. It is a narrative of
corruption and political abuse of intelligence powers so extensive
that it makes the concerns voiced by traditional civil libertarian
groups sound downright polyannaish.

A few Republicans—such as Sen. Rand Paul (R-Ken.) and Rep.
Thomas Massie (R-Ken.)—have both echoed this narrative and
drawn the obvious conclusion from it: That such abuses imply an
urgent need to impose additional safeguards. Yet when it came to an
actual vote Thursday morning, Republican leadership—and
ultimately even Trump himself—came down in opposition to the
most elementary check imaginable on NSA and FBI’s sweeping
wiretap authorities: A requirement that a judicial warrant be
obtained before repurposing a foreign intelligence
database to scrutinize the private communications of Americans.
Instead, most fell back on a more familiar Republican argument:
Broad wiretap powers, unhampered by too much judicial oversight,
are necessary to keep us safe, and Americans must trust the
patriotic employees of the intelligence agencies to use those
powers responsibly.

One does not, of course, have to believe all (or any) of Donald
Trump’s fevered claims about persecution by the Deep State to
think the FBI should need a warrant to read your e-mail. History provides
abundant genuine examples of American spies abusing their
powers
, whether or not one thinks Trump belongs on the list of
victims. But the converse position is simply untenable. Republicans
who voted to extend this warrantless spying authority for six years
have demonstrated that, whatever they say on cable television, they
either do not truly believe the portrait Trump has painted of the
intelligence community or—worse—only think it’s a
problem when Democrats are in charge.

Julian
Sanchez
is a senior fellow at Cato and focuses primarily on
issues at the busy intersection of technology, privacy, civil
liberties, and new media