Watergate Done Legally: The Predictable Truth About Spying

By | 2018-05-24T10:01:58+00:00 May 24th, 2018|
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The tug-of war (and it is a war) between Fox News alongside a handful of Republicans on one hand, and the solid front of U.S. government agencies, the Democratic Party, and the mainstream media (Google included) on the other, is focused on who in the Department of Justice and the FBI did what and why to start the July 31, 2016 “Crossfire Hurricane” counterintelligence investigation into the Trump campaign, to secure a FISA warrant for electronic intercepts of Trump advisers, and to vector Stefan Halper and possibly others to spy on them directly beginning around July 11. These details are so few and so jumbled as to obscure the considerably larger extent of the intelligence community’s involvement against Trump.

The following considers additional facts (not in dispute) from the perspective of my eight years of experience with the CIA, NSA, FBI, etc. as a senior staff member of the Senate Intelligence Committee, and as part of the group that drafted the Foreign Intelligence Surveillance Act (over my opposition).

The events of the past two years have confirmed the objections to FISA I stated in 1978: pre-clearance of wiretaps by a court that operates secretly, ex parte, and that is agnostic on national security matters, is an irresistible temptation to the party in power and its friends in the intelligence agencies to use the law to spy against their political opponents—that is, to do Watergate legally.

The Spying Legacy of 9/11
FISA was a bad idea, made worse after 9/11 by the addition of Section 702. It is a license to collect and use electronic data on Americans, so long as that collection is claimed to be “incidental” in the collection of data relating to foreigners. Since the claiming is done in secret, and the yearly court review can be finessed, officials’ self-restraint is all that keeps Section 702 itself from being an abuse. Item 17, “about queries,” specifically authorizes the collection of emails and phone calls of “U.S. persons.”

The first evidence that Obama Administration officials and their friends in the Community had used intelligence to try thwarting a political challenge came on November 17, 2016, when Donald Trump abruptly moved his transition headquarters from Trump Tower to Bedminster, New Jersey. The previous day, he had been visited by Admiral Mike Rogers, director of the National Security Agency. Rogers earlier had delivered the yearly Section 702 certification to the FISA court, saying that the Justice Department had improperly used that portion of the law to direct the NSA to listen in on Trump campaign headquarters. Just prior to Rogers’ delivery, John Carlin, head of the Justice Department’s national security division, tendered his resignation. Rogers was not happy. Trump even less so.

When the Section 702 abuse began is not public knowledge. We do know, however, that a FISA court in June 2016 rejected the Justice Department’s request for traditional FISA authority to monitor some members of the Trump campaign. Since ginning up such documents takes time, the process probably started in May or late April—roughly the time when Trump locked down the Republican nomination. Having failed to get explicit FISA authority, Justice Department officials may well have used the implicit authority of Section 702.

Who Employed Stefan Harper?
Something else unusual happened around that time: Trump associate Carter Page got an invite to an elite and cushy conference in Cambridge, England for Stef Halper. Turns out, Halper was acting on behalf of U.S. Intelligence. According to then-Director of National Intelligence James Clapper, Halper was not “spying”—just gathering information. Page and Halper met at the conference on July 11, a conference for which Page was paid a sizable honorarium for attending.

The commentariat has been atwitter (please excuse the term) about how this squares with the fact that the FBI’s formal “Crossfire Hurricane” investigation (revealed to the New York Times as part of the advance spin on the much-anticipated Justice Department inspector general’s report) began only on July 31. Did the FBI jump the gun? Not by a few days but when the invitation was sent months earlier? Was this another “malum prohibitum” on its part?

Most probably not. At most, searches of FBI documents may turn up information showing that this was, most likely, a CIA operation.

First, dispatching informants outside of formal investigations is not part of FBI’s culture. Sending informants through old-boy networks is the essence of CIA’s culture. Stef Halper is a Boomer generation old boy, having married into the Agency family and lived directly and indirectly from his connections with it. To anyone familiar with CIA’s sponsorship of cultural-academic activities in the postwar period, thereafter transmuted into a long (secret) and pricey list of contracts with personages and institutions in this field, the very name of Cambridge’s Center for Research in the Arts Social Sciences and Humanities shouts CIA!

Most likely, Halper and perhaps others were vectored, authoritatively but semi-formally, by then-CIA director John Brennan. It could hardly have been done except by his authority. Did Brennan’s friend Barack Obama know?  Neither that authorization nor that knowledge would break any laws.

But, boy, oh boy, how many bright red lines likely have been crossed!

How the Intelligence Community Became Corrupted
Recall that in 1947 the main objection to establishing the CIA was the widespread fear that, someday, its espionage would be used against Americans. That is why CIA was given no powers of arrest, why its agents would operate only abroad, and only against foreign targets. But from the very first, CIA officials, from the top down, have thought of themselves as entitled to transcend the role of lookouts for the ship of state. They have identified with and built relationships with policymakers, and placed their hands on the wheel as best they could.

The FBI used to be very different. CIA people looked down on the bureau’s “cop mentality.” But, gradually, the top levels of FBI started thinking of themselves as do those up the river: as partners with policymakers, fellow policymakers.

Just as important, a large part of these agencies—certainly the most personally successful one—absorbed and was absorbed by the ethos of the ruling class, the chief item of which is a sense of rightful superiority over the rest of Americans. The sense of entitlement to power, of the right and duty to do whatever it takes to defend it against bad people whom despicable Americans might elect or have elected, followed naturally.

Now the alternatives are all too clear: either those who have taken America across these red lines are punished severely, and with bipartisan approval—in which case we may return to a politically neutral national security establishment. If they are not, the national security apparatus is sure to become the queen in the nation’s political chessboard.

It would not be the first time in history in which government power started flowing from whoever controlled the security forces. What is sauce for the goose is sauce for the gander, too.

Photo credit: iStock/Getty Images

About the Author:

Angelo Codevilla
Angelo M. Codevilla is a senior fellow of the Claremont Institute, professor emeritus of international relations at Boston University and the author of To Make And Keep Peace (Hoover Institution Press, 2014).