Friday, March 17, 2017

Judge Andrew Napolitano: Did Obama Spy on Trump?

Judge Andrew Napolitano


The question of whether former President Barack Obama actually spied on President Donald Trump during the 2016 presidential campaign and transition has been tantalizing Washington since President Trump first made the allegation nearly two weeks ago. Since then, three investigations have been launched -- one by the FBI, one by the House of Representatives and one by the Senate. Are the investigators chasing a phantom, or did this actually happen?

Here is the back story.


Obama would not have needed a warrant to authorize surveillance on Trump. Obama was the president and as such enjoyed authority under the Foreign Intelligence Surveillance Act to order surveillance on any person in America, without suspicion, probable cause or a warrant.

FISA contemplates that the surveillance it authorizes will be for national security purposes, but this is an amorphous phrase and an ambiguous standard that has been the favorite excuse of most modern presidents for extraconstitutional behavior. In the early 1970s, President Richard Nixon used national security as a pretext to deploying the FBI and CIA to spy on students and even to break in to the office of the psychiatrist of Daniel Ellsberg, one of his tormentors.

FISA was enacted in the late 1970s to force the federal government to focus its surveillance activities -- its domestic national security-based spying -- on only those people who were more likely than not agents of a foreign government. Because FISA authorizes judges on the Foreign Intelligence Surveillance Court to make rules and establish procedures for surveillance -- essentially lawmaking -- in secret, the public and the media have been largely kept in the dark about the nature and extent of the statute and the legal and moral rationale for the federal government's spying on everyone in the U.S.

The mass spying that these judges have ruled FISA authorizes is directly counter to the wording, meaning and purpose of FISA itself, which was enacted to prevent just what it has in fact now unleashed.

We now know indisputably that this secret FISA court -- whose judges cannot keep records of their own work and have their pockets and briefcases checked by guards as they enter and leave the courthouse -- has permitted all spying on everyone all the time.

The FISA court only hears lawyers for the government, and they have convinced it that it is more efficient to capture the digital versions of everyone's phone calls, texts, emails and other digital traffic than it is to force the government -- as the Constitution requires -- to focus on only those who there is reason to believe are more likely than not engaging in unlawful acts.

When FISA was written, telephone surveillance was a matter of wiretapping -- installing a wire onto the target's telephone line, either inside or outside the home or business, and listening to or recording in real time the conversations that were audible on the tapped line.

Today the National Security Agency has 24/7 access to the mainframe computers of all telecom providers and all computer service providers and to all digital traffic carried by fiber optics in the U.S. The NSA has had this access pursuant to FISA court orders issued in 2005 and renewed every 90 days. The FISA court has based its rulings on its own essentially secret convoluted logic, never subjected to public scrutiny. That has resulted in the universal surveillance state in which we in America now live. The NSA has never denied this.

Thus, in 2016, when Trump says the surveillance of him took place, Obama needed only to ask the NSA for a transcript of Trump's telephone conversations to be prepared from the digital versions that the NSA already possessed. Because the NSA has the digital version of every telephone call made to, from and within the U.S. since 2005, if President Obama last year wanted transcripts of Trump's calls made at any time, the NSA would have been duty-bound to provide them, just as it would be required to provide transcripts of Obama's calls today if President Trump wanted them.

But if Obama did order the NSA to prepare transcripts of Trump's conversations last fall under the pretext of national security -- to find out whether Trump was communicating with the Russians would have been a good excuse -- there would exist somewhere a record of such an order. For that reason, if Obama did this, he no doubt used a source on which he'd leave no fingerprints.

Enter James Bond.

Sources have told Fox News that the British foreign surveillance service, the Government Communications Headquarters, known as GCHQ, most likely provided Obama with transcripts of Trump's calls. The NSA has given GCHQ full 24/7 access to its computers, so GCHQ -- a foreign intelligence agency that, like the NSA, operates outside our constitutional norms -- has the digital versions of all electronic communications made in America in 2016, including Trump's. So by bypassing all American intelligence services, Obama would have had access to what he wanted with no Obama administration fingerprints.

Thus, when senior American intelligence officials denied that their agencies knew about this, they were probably being truthful. Adding to this ominous scenario is the fact that three days after Trump's inauguration, the head of GCHQ, Robert Hannigan, abruptly resigned, stating that he wished to spend more time with his family.

I hope the investigations of Trump's allegation discover and reveal the truth -- whatever it is. But the lesson here is terribly serious. We face the gravest threat to personal liberty since the Alien and Sedition Acts of 1798 proscribed criticism of the government. We have an unelected, unnamed, unaccountable elite group in the intelligence community manipulating the president at will and possessing intimate, detailed knowledge about all of us that it can reveal. We have statutes that have given the president unconstitutional powers that have apparently been used. And we have judges on secret courts facilitating all this as if the Constitution didn't exist.
For how much longer will we have freedom?

Robert Parry: The Kagans are Back; Wars to Follow



The neocons were tossed a lifeline by Democrats and liberals who detested Trump so much that they were happy to pick up Nuland’s fallen banner of the New Cold War with Russia. As part of a dubious scheme to drive Trump from office. Family Kagan has charted the course of action – batter Republicans into joining the all-out Russia-bashing and then persuade a softened Trump to launch a full-scale invasion of Syria.

The Kagan family, America’s neoconservative aristocracy, has reemerged having recovered from the letdown over not gaining its expected influence from the election of Hillary Clinton and from its loss of official power at the start of the Trump presidency.

Back pontificating on prominent op-ed pages, the Family Kagan now is pushing for an expanded U.S. military invasion of Syria and baiting Republicans for not joining more enthusiastically in the anti-Russian witch hunt over Moscow’s alleged help in electing Donald Trump.

In a Washington Post op-ed on March 7, Robert Kagan, a co-founder of the Project for the New American Century and a key architect of the Iraq War, jabbed at Republicans for serving as “Russia’s accomplices after the fact” by not investigating more aggressively.

Then, Frederick Kagan, director of the Critical Threats Project at the neocon American Enterprise Institute, and his wife, Kimberly Kagan, president of her own think tank, Institute for the Study of War, touted the idea of a bigger U.S. invasion of Syria in a Wall Street Journal op-ed on March 15.

Yet, as much standing as the Kagans retain in Official Washington’s world of think tanks and op-ed placements, they remain mostly outside the new Trump-era power centers looking in, although they seem to have detected a door being forced open.

Still, a year ago, their prospects looked much brighter. They could pick from a large field of neocon-oriented Republican presidential contenders or – like Robert Kagan – they could support the establishment Democratic candidate, Hillary Clinton, whose “liberal interventionism” matched closely with neoconservatism, differing only slightly in the rationalizations used for justifying wars and more wars.

There was also hope that a President Hillary Clinton would recognize how sympatico the liberal hawks and the neocons were by promoting Robert Kagan’s neocon wife, Victoria Nuland, from Assistant Secretary of State for European Affairs to Secretary of State.

Then, there would have been a powerful momentum for both increasing the U.S. military intervention in Syria and escalating the New Cold War with Russia, putting “regime change” back on the agenda for those two countries. So, early last year, the possibilities seemed endless for the Family Kagan to flex their muscles and make lots of money.

A Family Business

As I noted two years ago in an article entitled “A Family Business of Perpetual War”: “Neoconservative pundit Robert Kagan and his wife, Assistant Secretary of State Victoria Nuland, run a remarkable family business: she has sparked a hot war in Ukraine and helped launch Cold War II with Russia and he steps in to demand that Congress jack up military spending so America can meet these new security threats.

“This extraordinary husband-and-wife duo makes quite a one-two punch for the Military-Industrial Complex, an inside-outside team that creates the need for more military spending, applies political pressure to ensure higher appropriations, and watches as thankful weapons manufacturers lavish grants on like-minded hawkish Washington think tanks.

“Not only does the broader community of neoconservatives stand to benefit but so do other members of the Kagan clan, including Robert’s brother Frederick at the American Enterprise Institute and his wife Kimberly, who runs her own shop called the Institute for the Study of War.”

But things didn’t quite turn out as the Kagans had drawn them up. The neocon Republicans stumbled through the GOP primaries losing out to Donald Trump and then – after Hillary Clinton muscled aside Sen. Bernie Sanders to claim the Democratic nomination – she fumbled away the general election to Trump.

After his surprising victory, Trump – for all his many shortcomings – recognized that the neocons were not his friends and mostly left them out in the cold. Nuland not only lost her politically appointed job as Assistant Secretary but resigned from the Foreign Service, too.

With Trump in the White House, Official Washington’s neocon-dominated foreign policy establishment was down but far from out. The neocons were tossed a lifeline by Democrats and liberals who detested Trump so much that they were happy to pick up Nuland’s fallen banner of the New Cold War with Russia. As part of a dubious scheme to drive Trump from office, Democrats and liberals hyped evidence-free allegations that Russia had colluded with Trump’s team to rig the U.S. election.

New York Times columnist Thomas L. Friedman spoke for many of this group when he compared Russia’s alleged “meddling” to Japan’s bombing of Pearl Harbor and Al Qaeda’s 9/11 terror attacks.

On MSNBC’s “Morning Joe” show, Friedman demanded that the Russia hacking allegations be treated as a casus belli: “That was a 9/11 scale event. They attacked the core of our democracy. That was a Pearl Harbor scale event.” Both Pearl Harbor and 9/11 led to wars.

So, with many liberals blinded by their hatred of Trump, the path was open for neocons to reassert themselves.

Baiting Republicans

Robert Kagan took to the high-profile op-ed page of The Washington Post to bait key Republicans, such as Rep. Devin Nunes, chairman of the House Intelligence Committee who was pictured above the Post article and its headline, “Running interference for Russia.”

Kagan wrote: “It would have been impossible to imagine a year ago that the Republican Party’s leaders would be effectively serving as enablers of Russian interference in this country’s political system. Yet, astonishingly, that is the role the Republican Party is playing.”

Kagan then reprised Official Washington’s groupthink that accepted without skepticism the claims from President Obama’s outgoing intelligence chiefs that Russia had “hacked” Democratic emails and released them via WikiLeaks to embarrass the Clinton campaign.

Though Obama’s intelligence officials offered no verifiable evidence to support the claims – and WikiLeaks denied getting the two batches of emails from the Russians – the allegations were widely accepted across Official Washington as grounds for discrediting Trump and possibly seeking his removal from office.

Ignoring the political conflict of interest for Obama’s appointees, Kagan judged that “given the significance of this particular finding [about Russian meddling], the evidence must be compelling” and justified “a serious, wide-ranging and open investigation.”

But Kagan also must have recognized the potential for the neocons to claw their way back to power behind the smokescreen of a New Cold War with Russia.

He declared: “The most important question concerns Russia’s ability to manipulate U.S. elections. That is not a political issue. It is a national security issue. If the Russian government did interfere in the United States’ electoral processes last year, then it has the capacity to do so in every election going forward. This is a powerful and dangerous weapon, more than warships or tanks or bombers.

“Neither Russia nor any potential adversary has the power to damage the U.S. political system with weapons of war. But by creating doubts about the validity, integrity and reliability of U.S. elections, it can shake that system to its foundations.”

A Different Reality

As alarmist as Kagan’s op-ed was, the reality was far different. Even if the Russians did hack the Democratic emails and somehow slipped the information to WikiLeaks – an unsubstantiated and disputed contention – those two rounds of email disclosures were not that significant to the election’s outcome.

Hillary Clinton blamed her surprise defeat on FBI Director James Comey briefly reopening the investigation into her use of a private email server while serving as Secretary of State.

Further, by all accounts, the WikiLeaks-released emails were real and revealed wrongdoing by leading Democrats, such as the Democratic National Committee’s tilting of the primaries against Sen. Bernie Sanders and in favor of Clinton. The emails of Clinton campaign chairman John Podesta disclosed the contents of Clinton’s paid speeches to Wall Street, which she was trying to hide from voters, as well as some pay-to-play features of the Clinton Foundation.

In other words, the WikiLeaks’ releases helped inform American voters about abuses to the U.S. democratic process. The emails were not “disinformation” or “fake news.” They were real news.

A similar disclosure occurred both before the election and this week when someone leaked details about Trump’s tax returns, which are protected by law. However, except for the Trump camp, almost no one thought that this illegal act of releasing a citizen’s tax returns was somehow a threat to American democracy.

The general feeling was that Americans have a right to know such details about someone seeking the White House. I agree, but doesn’t it equally follow that we had a right to know about the DNC abusing its power to grease the skids for Clinton’s nomination, about the contents of Clinton’s speeches to Wall Street bankers, and about foreign governments seeking pay-to-play influence by contributing to the Clinton Foundation?

Yet, because Obama’s political appointees in the U.S. intelligence community “assess” that Russia was the source of the WikiLeaks emails, the assault on U.S. democracy is a reason for World War III.

More Loose Talk

But Kagan was not satisfied with unsubstantiated accusations regarding Russia undermining U.S. democracy. He asserted as “fact” – although again without presenting evidence – that Russia is “interfering in the coming elections in France and Germany, and it has already interfered in Italy’s recent referendum and in numerous other elections across Europe. Russia is deploying this weapon against as many democracies as it can to sap public confidence in democratic institutions.”

There’s been a lot of handwringing in Official Washington and across the Mainstream Media about the “post-truth” era, but these supposed avatars for truth are as guilty as anyone, acting as if constantly repeating a fact-free claim is the same as proving it.

But it’s clear what Kagan and other neocons have in mind, an escalation of hostilities with Russia and a substantial increase in spending on U.S. military hardware and on Western propaganda to “counter” what is deemed “Russian propaganda.”

Kagan recognizes that he already has many key Democrats and liberals on his side. So he is taking aim at Republicans to force them to join in the full-throated Russia-bashing, writing:

“But it is the Republicans who are covering up. The party’s current leader, the president, questions the intelligence community’s findings, motives and integrity. Republican leaders in Congress have opposed the creation of any special investigating committee, either inside or outside Congress. They have insisted that inquiries be conducted by the two intelligence committees.

“Yet the Republican chairman of the committee in the House has indicated that he sees no great urgency to the investigation and has even questioned the seriousness and validity of the accusations. The Republican chairman of the committee in the Senate has approached the task grudgingly.

“The result is that the investigations seem destined to move slowly, produce little information and provide even less to the public. It is hard not to conclude that this is precisely the intent of the Republican Party’s leadership, both in the White House and Congress. …

“When Republicans stand in the way of thorough, open and immediate investigations, they become Russia’s accomplices after the fact.”

Lying with the Neocons

Many Democrats and liberals may find it encouraging that a leading neocon who helped pave the road to war in Iraq is now by their side in running down Republicans for not enthusiastically joining the latest Russian witch hunt. But they also might pause to ask themselves how they let their hatred of Trump get them into an alliance with the neocons.

On Wednesday in The Wall Street Journal, Robert Kagan’s brother Frederick and his wife Kimberly dropped the other shoe, laying out the neocons’ long-held dream of a full-scale U.S. invasion of Syria, a project that was put on hold in 2004 because of U.S. military reversals in Iraq.

But the neocons have long lusted for “regime change” in Syria and were not satisfied with Obama’s arming of anti-government rebels and the limited infiltration of U.S. Special Forces into northern Syria to assist in the retaking of the Islamic State’s “capital” of Raqqa.

In the Journal op-ed, Frederick and Kimberly Kagan call for opening a new military front in southeastern Syria:

“American military forces will be necessary. But the U.S. can recruit new Sunni Arab partners by fighting alongside them in their land. The goal in the beginning must be against ISIS because it controls the last areas in Syria where the U.S. can reasonably hope to find Sunni allies not yet under the influence of al Qaeda. But the aim after evicting ISIS must be to raise a Sunni Arab army that can ultimately defeat al Qaeda and help negotiate a settlement of the war.

“The U.S. will have to pressure the Assad regime, Iran and Russia to end the conflict on terms that the Sunni Arabs will accept. That will be easier to do with the independence and leverage of a secure base inside Syria. … President Trump should break through the flawed logic and poor planning that he inherited from his predecessor. He can transform this struggle, but only by transforming America’s approach to it.”

A New Scheme on Syria

In other words, the neocons are back to their clever word games and their strategic maneuverings to entice the U.S. military into a “regime change” project in Syria.

The neocons thought they had almost pulled off that goal by pinning a mysterious sarin gas attack outside Damascus on Aug. 21, 2013, on the Syrian government and mousetrapping Obama into launching a major U.S. air assault on the Syrian military.

But Russian President Vladimir Putin stepped in to arrange for Syrian President Bashar al-Assad to surrender all his chemical weapons even as Assad continued to deny any role in the sarin attack.

Putin’s interference in thwarting the neocons’ dream of a Syrian “regime change” war moved Putin to the top of their enemies’ list. Soon key neocons, such as National Endowment for Democracy president Carl Gershman, were taking aim at Ukraine, which Gershman deemed “the biggest prize” and a steppingstone toward eventually ousting Putin in Moscow.

It fell to Assistant Secretary Victoria “Toria” Nuland to oversee the “regime change” in Ukraine. She was caught on an unsecured phone line in late January or early February 2014 discussing with U.S. Ambassador to Ukraine Geoffrey Pyatt how “to glue” or “to midwife” a change in Ukraine’s elected government of President Viktor Yanukovych.

Several weeks later, neo-Nazi and ultranationalist street fighters spearheaded a violent assault on government buildings forcing Yanukovych and other officials to flee for their lives, with the U.S. government quickly hailing the coup regime as “legitimate.”

But the Ukraine putsch led to the secession of Crimea and a bloody civil war in eastern Ukraine with ethnic Russians, events that the State Department and the mainstream Western media deemed “Russian aggression” or a “Russian invasion.”

So, by the last years of the Obama administration, the stage was set for the neocons and the Family Kagan to lead the next stage of the strategy of cornering Russia and instituting a “regime change” in Syria.

All that was needed was for Hillary Clinton to be elected president. But these best-laid plans surprisingly went astray. Despite his overall unfitness for the presidency, Trump defeated Clinton, a bitter disappointment for the neocons and their liberal interventionist sidekicks.

Yet, the so-called “#Resistance” to Trump’s presidency and President Obama’s unprecedented use of his intelligence agencies to paint Trump as a Russian “Manchurian candidate” gave new hope to the neocons and their agenda.

It has taken them a few months to reorganize and regroup but they now see hope in pressuring Trump so hard regarding Russia that he will have little choice but to buy into their belligerent schemes.

As often is the case, the Family Kagan has charted the course of action – batter Republicans into joining the all-out Russia-bashing and then persuade a softened Trump to launch a full-scale invasion of Syria. In this endeavor, the Kagans have Democrats and liberals as the foot soldiers.

Investigative reporter Robert Parry broke many of the Iran-Contra stories for The Associated Press and Newsweek in the 1980s. His latest book is America’s Stolen Narrative.