Claims Of Obama-Era Domestic Spying Are Overblown

As a conservative, it pains me to be perceived as defending Barack Obama. I was a strong and consistent opponent of Obama during his eight years in the White House and rarely, if ever, agreed with him on anything. Yet at times, the criticism and attacks on Obama went too far and I feel obliged to speak up. Such was the case when conservatives charged, against all evidence, that Obama was actually a native Kenyan and that he planned to declare martial law in Texas. It’s the case now with charges of rampant spying on political opponents by the Obama Administration. Objectively speaking, the evidence to support these claims is simply not there.

Such is the case with the recent op-ed by Sharyl Attkisson in The Hill. As with many on the right, Attkisson assumes recent revelations of the surveillance of Paul Manafort are really an attempt to spy on Donald Trump. That doesn’t seem to be the case. Like the others, Attkisson fails to mention that the surveillance started two years before Trump tapped Manafort to be his campaign manager. Attkisson also overlooks the fact that there were many valid reasons for Manafort to be under scrutiny after he closely worked with the party of Ukrainian dictator and Putin figurehead, Viktor Yanukovych.

If the CNN report on the monitoring of Manafort is to be believed, and Attkisson seems to think it does, Manafort was apparently not under surveillance while he was Trump’s campaign manager. The report states that the two FISA warrants that covered Manafort were active from 2014 through “some point” in 2016 and again through fall of 2016 to early 2017. This seems to exclude the period from March through August 2016 when Manafort worked for the Trump campaign and possibly the entire time that Trump has been president.

Other examples of surveillance of by Attkisson are similarly overblown and misinterpreted. She cites comments by former Director of National Intelligence James Clapper and former Acting Attorney General Sally Yates that “they, too, reviewed communications of political figures, secretly collected under President Obama.” When examined, the testimony in question deals primarily with Michael Flynn, the national security advisor who was fired for lying about his conversations with the Russian ambassador. Flynn’s case falls under incidental surveillance in which the Russian diplomat, not Flynn himself, was the person under surveillance. Spying on foreign diplomats is a legitimate role of the intelligence community.

Likewise, Attkisson’s claim that the Obama Administration spied on Congress is misleading. The Wall Street Journal article on which her claim is based makes clear that the government of Israeli Prime Minister Benjamin Netanyahu was the surveillance target, not members of Congress. The article makes clear that the NSA did not intentionally monitor the congressmen, saying that the incidental collection of their conversations with the Netanyahu government led to an “Oh-s— moment” and very valid concerns that the Obama Administration was intentionally monitoring the legislative branch.

Attkisson also cites the example of Rep. Jane Harman (D-Calif.). In the 2012 article linked by Attkisson on Counterpunch.org, Harman was allegedly the subject of two NSA wiretaps in 2006 and 2009. Obama can obviously not be blamed for the first wiretap since George W. Bush was president in 2006. In any case, once again we see that the target of the surveillance was not Rep. Harman, but a suspected Israeli agent.

Attkisson’s example of Dennis Kucinich (D-Ohio) is another example of a congressman being snared by contact from suspected foreign agents. In Kucinich’s case, the government recorded a call made to his congressional office by Saif el-Islam Qaddafi, at the time a high-ranking official in Libya’s government and a son of the country’s ruler, Moammar Qaddafi.

While the Obama Administration did spy on Fox News journalist, James Rosen, it appears that it did so legally. The Department of Justice obtained a warrant to search Rosen’s emails in connection with an investigation into leaked classified information, says the Freedom of the Press Foundation.

Likewise, the cyber spying on the Associated Press was “legal, as far as I can tell,” CNN legal analyst Jeffrey Toobin said at the time. “The administration isn't violating the First Amendment. But they are certainly doing more than has ever been done before in pursuing the private information of journalists. And we'll see if there's any political check on them, because there doesn't appear to be any legal check on what they're doing.”

Attkisson’s claim that the Obama Administration spied on her is also unverified. The CBS News article describing the breach that Attkisson links to contains a disclaimer: “To be clear, the federal government has not been accused in the intrusion of Attkisson's computer; CBS News is continuing to work to identify the responsible party.”

Attkisson sued the Obama Administration over the hacking in 2015. The suit is ongoing and she says that the Trump Administration is continuing to defend the case in court. She fails to explain why the Trump Administration would defend illegal actions by the Obama Administration, especially if Donald Trump was also a victim of Obama’s illicit surveillance.

In her closing argument, Attkisson cites alarming statistics about the increase in surveillance under Obama. Nevertheless she fails to point out that, per her source, in 2016, when Obama had supposedly increased surveillance at an alarming pace, only 336 US citizens were targeted by FISA warrants. Likewise, the same memo that Attkisson cites as evidence that the “intelligence community secretly expanded its authority in 2011 so it can monitor innocent U.S. citizens like you and me” actually says that the NSA realized that “its compliance and oversight infrastructure… had not kept pace” and “undertook significant steps to address these issues….”

Additionally, the alarmists fail to acknowledge that the first request for a FISA warrant on Trump campaign staffers was rejected in June 2016. This rejection seems to indicate that at least some intelligence officials under Obama took domestic surveillance protections seriously.

Likewise ignored is a statement in The New York Times from April 2017. Citing an unnamed official, the Times reported with respect to surveillance of Carter Page, another Trump campaign official, “The Justice Department considered direct surveillance of anyone tied to a political campaign as a line it did not want to cross.” This may explain the break in surveillance of Paul Manafort as well.

While there is a lack of evidence of systemic abuse of surveillance by the Obama Administration, there are legitimate concerns. For example, how did the recording of Kucinich’s phone conversation find its way into the hands of reporters four years later? The leaks of Michael Flynn’s conversations to the media were illegal, the lies Flynn told about them to Vice President Pence notwithstanding. The leakers have never been publicly identified or punished.

The unmasking of American subjects of incidental surveillance by Obama Administration officials is also problematic. Susan Rice appears to have been cleared of wrongdoing by House investigators, but Samantha Power still needs to explain her actions.

Finally, the revelations that the CIA inappropriately accessed Senate computers in 2014 shows the need for strict third-party oversight. Nevertheless, the fact that the breach was disclosed at all is encouraging. A subsequent review found that the incident was the result of an error and not intelligence officers acting in bad faith. More protections for journalists from surveillance would be an appropriate reform as well.

The claims of rampant Obama-era spying reflect many of the hallmarks of a classic conspiracy theory. For instance, the dots must be connected between many disparate events and rational explanations have to be ignored. A conspiracy by the Obama Administration to spy on political opponents would mean that virtually everyone in a leadership role in the intelligence community would be complicit, yet few have been fired by President Trump. When he did fire James Comey, illicit spying on Americans was not one of the reasons given.

Originally published on The Resurgent

Occam’s Razor holds that the simplest explanation is most often correct. In the case of Obama’s domestic surveillance, the simplest explanation is that there was probable cause for monitoring in most cases. That includes the cases of Paul Manafort and Carter Page. In other cases, some Americans were caught up in incidental surveillance of legitimate surveillance targets. Michael Flynn fell into this category. Donald Trump may have as well. 

Obama Big Brother poster

Sales of George Orwell's classic novel "1984" have skyrocketed since knowledge of the NSA's eavesdropping programs became widespread.

Verizon phone records are different from IRS scandal

This week’s revelations of widespread data gathering by the federal government have shocked many Americans.  Coming on the heels of the recent scandals about Justice Department spying on reporters and IRS agents harassing political opponents, the new information about America’s intelligence gathering activities have drawn widespread opposition and indignation.  There are important differences between the activities of the National Security Agency and the other scandals, however.

On Wednesday, leaked court documents demanding that Verizon turn over phone records to the federal government sparked an uproar over the NSA’s phone surveillance program.  On Friday, James Clapper, the director of national intelligence, released more details about the program.  Reported by the Associated Press, Clapper noted the program, which presumably includes other companies as well as Verizon, is reviewed every 90 days and the government is prohibited from indiscriminately examining the records of Americans.  The information obtained by the NSA does not contain the content of the calls, but only “metadata” such as the phone numbers involved, time, location, and duration of the call.

On Friday, the Washington Post also published leaked reports of PRISM, a secret program that analyzes internet traffic in a manner similar to the NSA’s examination of phone records.  According to the leaked documents, “e-mail, chat, videos, photos, stored data, VoIP, file transfers, video conferencing, notifications of target activity...log-ins, etc., online social networking details” were available from major internet companies.  A CNET analysis of the PRISM documents indicates that it is theoretically possible that the government has been reading private emails of American citizens.

Even though the amount of information collected by the NSA and PRISM is staggering, there is so far no evidence that it has been used to spy on Americans or intrude on their privacy.  Instead, it seems that the federal government has been engaged in a process called “data mining.”  Data mining is the use of computer programs to discover hidden patterns in data.  Private companies frequently use data mining to target advertisements to likely customers.  Cookies on websites and tracking software collect information about internet users, which is then sold to internet advertisers.  Computer programs can even “read” your emails to target ads to your screen.  Similar programs might be used to block suspicious credit card transactions based on the user’s past history. 

While the NSA is not interested in selling anything to Americans, it is presumably interested in suspicious contacts between the United States and known terrorists in other countries.  On Thursday, Mike Rogers (R-Mich.), chairman of the House Intelligence Committee, told Politico that “Within the last few years, this program was used to stop a terrorist attack in the United States.”  Rogers added, “It is a very valuable thing. It is legal.”

Rogers appears to be correct.  Both programs appear to be legal if they were implemented properly.  In 1979, the Supreme Court ruled in Smith v. Maryland that telephone users have no expectation of privacy with regard to telephone numbers dialed because telephone companies regularly track such information.  Likewise, CNET points out that the Foreign Intelligence Surveillance Act of 2008 and the Protect America Act of 2007 permit intelligence gathering of internet data.  The Protect America Act is limited to people “reasonably believed to be located outside of the United States” (Section 105A) and the Section 702 of the FISA Act clarifies that U.S. citizens or people within the United States cannot be targeted. 

On Friday, President Obama defended the NSA programs, saying, “Nobody is listening to your telephone calls.” In a PBS transcript, Obama continued, “By sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism. Now, with respect to the Internet and e-mails, this doesn't apply to U.S. citizens, and it doesn't apply to people living in the United States.” 

In a separate speech on Friday, transcribed by NBC Bay Area, Obama noted that “ if people can't trust not only the executive branch but also don't trust Congress and don't trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law, then we’re going to have some problems here.”

The other scandals of the Obama Administration have worked to diminish public trust in government, however.  Even before the recent scandals, Pew showed public trust in government at all-time low levels.  The reports of systematic abuses of power against the president’s political opponents (summary on Examiner.com) and spying on reporters have only heightened the crisis of confidence in the federal government.   A June 5 Rasmussen poll showed that an unprecedented 56 percent of Americans view the federal government as a threat to individual rights.  Even normally trusted agencies such as the FBI have been implicated in the Obama Administration’s apparent suppression of conservative groups.   Even the New York Times said Thursday that “The administration has now lost all credibility on this issue. Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it.”

Unlike the data mining by the NSA, the allegations against Obama Administration in the IRS and DOJ media spying scandals include the specific targeting of American citizens.  The IRS has admitted that it specifically targeted conservative groups and an investigation by McClatchy News confirmed that no liberal or nonpartisan groups received unfair treatment.  Several IRS employees have said that their scrutiny and harassment of conservative groups was directed by IRS officials in Washington according to the Associated Press.  Likewise, Attorney General Holder personally approved the warrant for surveillance of Fox News reporter James Rosen according to MSNBC.  Unlike the NSA surveillance, which was apparently a legitimate program directed at foreign terrorists, the IRS and Justice Department programs were specifically directed at Americans and apparently had political motives.

The NSA’s surveillance programs are not new.  They have been public knowledge since 2005 when the New York Times published an account of the program.  However, the programs are likely viewed with more concern by many Americans due to the recent reports of spying and abuses of power against American citizens.  If the IRS and DOJ could illegally target Americans for political purposes, many are concerned that NSA data might be used for the same reason.  

Originally published on Examiner.com