Another day, another thought-provoking tweet from President Trump. Recently, he claimed that former President Obama authorized illegal wiretaps in Trump Tower during the 2016 presidential campaign. A number of people have stated that this is blatantly false, including former Director of National Intelligence James Clapper, FBI Director James Comey, and of course, Barack Obama himself. Senators Lindsey Graham and Sheldon Whitehouse have requested an investigation by the FBI and acting Attorney General, writing in a letter “as Chairman and Ranking Member of the Senate Judiciary Committee’s Subcommittee on Crime and Terrorism, we would take any abuse of wiretapping authorities for political purposes very seriously. We would be equally alarmed to learn that a court found enough evidence of criminal activity or contact with a foreign power to legally authorize a wiretap of President Trump, the Trump Campaign, or Trump Tower.” This feedback comes at a bad time for the Trump administration, as the FBI is currently investigating charges of Russian tampering with the 2016 election results.
Surveillance related to foreign affairs is generally overseen by the United States Foreign Intelligence Surveillance Court (commonly referred to as the FISA Court), which was created by the Foreign Intelligence Surveillance Act of 1978. The Court takes applications for warrants for “electronic surveillance, physical search, and certain other forms of investigative actions for foreign intelligence purposes.” Foreign surveillance issues have made an appearance before the Supreme Court; one of the most recent cases being Clapper v. Amnesty International USA, et al., 568 U.S. ____ (2013). There, Amnesty International challenged the constitutionality of the FISA Amendments Act of 2008, which allowed “the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not ‘United States persons’ and are reasonably believed to be located outside the United States,” and did not require a warrant to be issued. “Respondents—attorneys and human rights, labor, legal, and media organizations—are United States persons who claim that they engage in sensitive international communications with individuals who they believe are likely targets of §1881a surveillance.” They argued that the Act violated the Fourth Amendment. The Court held that Amnesty International did not have standing, noting that the likelihood that they would actually be harmed by the statute was highly speculative and depended on a certain sequence of events occurring.
On a March 14th episode of Fox & Friends, well-respected Fox News Analyst Judge Andrew Napolitano claimed that three intelligence sources revealed that President Obama looked to British spy agencies to obtain transcripts of conversations involving President Donald Trump. Napolitano said:
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[T]hree intelligence sources have informed Fox News that President Obama went outside the chain of command. He didn’t use the NSA. He didn’t use the CIA. He didn’t use the FBI, and he didn’t use Department of Justice. He used GCHQ. What the heck is GCHQ? That’s the initials for the British spying agency. They have 24/7 access to the NSA database. So by simply having two people go to them saying, ‘President Obama needs transcripts of conversations involving candidate Trump, conversations involving president-elect Trump,’ he’s able to get it, and there’s no American fingerprints on this.”At the time of this writing, Trump has rolled back his claim of wiretaps taking place, and has stated to the press that “wiretapping includes a lot of different things” that he will show evidence of soon. At the same time, lawmakers that have defended Trump in the past (including Speaker Paul Ryan) are saying that there has been no evidence of these wiretaps. It will be interesting to see in the coming days what evidence Trump brings forth to support these claims.