Mediaboss Marketing

President Trump aboard the U.S.S. Gerald R. Ford last week.CreditPHOTOGRAPH BY SAUL LOEB / AFP / GETTY

On November 26, 2010, in Portland, Oregon, Mohamed Osman Mohamud, a nineteen-year-old Somali-born American citizen, stood near the citys Pioneer Courthouse and punched numbers into a cell phone. He thought the phone would set off a bomb planted nearby, at a crowded Christmas-tree lighting ceremony. In fact, Mohamud had been duped by a months-long F.B.I. counterterrorism sting operation. Agents arrested him.

In 2013, after a two-week trial, a jury convicted Mohamud of attempting to use a weapon of mass destruction. He was sentenced to thirty years in prison. It was only after his trial that the government notified the court that some of the evidence it had used in the case had been obtained under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which can allow for warrantless surveillance of Americans communicating with foreigners targeted for intelligence collection.

Mohamuds lawyers argued that his conviction should be thrown out because, among other reasons, the use of FISA evidence violated the defendants Fourth Amendment rights against unreasonable search. Last December, a federal appeals-court panel in the Ninth Circuit ruled against Mohamud. It held that it was fine for the government to use evidence gathered without a warrant at a criminal trial because the collection had occurred incidentally in the course of a permissible operation and would, in any event, have been allowed by the foreign-intelligence exception to warrant requirements.

The appeals decision was, in a sense, aligned with the Trump Administrations incendiary, get-tough rhetoric about terrorism. Yet the fact that evidence scooped up by the American surveillance state while it spies on foreign intelligence operatives might end up in a criminal case brought against an American citizen should give President Trump pause, particularly given the F.B.I.s reported ongoing investigation into alleged contacts between Trump advisers and Russian intelligence and government officials.

The Trump Administration has already seen its first national-security adviser, Michael Flynn, resign, after it was revealed that the contents of a conversation between Flynn and Sergey Kislyak, Russias Ambassador to Washington, contradicted descriptions Flynn gave in public and to Vice-President Mike Pence. Flynn, a career military-intelligence officer, should have known that Kislyak was probably a target for foreign-intelligence collection by the United States, and that any conversation with him might be intercepted and transcribed. Flynns apparent sloppiness cost him his office, but his fate provides a broader warning for any Trump advisers who have consorted with Russians involved in intelligence operations aimed at the U.S.

On February 14th, the Times reported that phone records and intercepted calls showed that members of Trumps Presidential campaign and other advisers had repeated contacts with Russian intelligence officials in the year leading up to Trumps election. It isnt clear how detailed this evidence is, why it was collected in the first place, or whether it provides any indication of improper conduct. (James Clapper, who served as the director of National Intelligence until Trumps Inauguration, told Meet the Press on Sunday that, at the time he left office, he knew of no evidence of collusion between the Trump campaign and Russia.)

In any event, the context for the F.B.I.s investigation is different than it would have been two decades agoand not only for Trump. Since 2001, because of the U.S.A. Patriot Act and other expansions to counterterrorism authorities and programs, it has become easier for the government to use information collected for intelligence purposes, with or without a warrant, to support criminal prosecutions against any American. Typically, this happens in cases that touch upon terrorism, intelligence operations, or espionage, but the charges at the end of these murky trails of evidence collection may also involve finance, perjury, and even press leaks.

Section 702 of FISA is one of the main instruments of that surveillance policy. It was enacted in its current form in 2008, and authorizes the Attorney General and the director of National Intelligence to target individuals who are not U.S. citizens or permanent residents and who are believed to be overseas. Under its procedures, however, investigators can collect phone and e-mail records from U.S. companies, among other things. This is one of the legal frameworks for secret programs of large-scale electronic and phone-record collection, such as the ones exposed by Edward Snowden. The law is supposed to protect against abuses such as reverse targetingthat is, for example, setting up surveillance of a Russian spy abroad when the real purpose is to collect evidence against Americans with whom the spy might be in touchyet the system is highly classified and not subject to scrutiny in open courts.

The President and his advisers seem genuinely worried that a deep stateat the C.I.A. and the F.B.I., of the kind Oliver Stone might imagine, is out to get them. In their anxiety, it might be helpful if, instead of tweeting out wild and fanciful accusations about wiretapping at Trump Tower, they were to reflect on the actual engineering of the surveillance state and the much wider dangers to liberty and due process it poses.

Typically, the defendants at risk when the government overreaches with surveillance operationssuch as Mohamud, who came to the United States from Somalia as a refugee when he was a small boyare relatively powerless. Trump cited his case, without naming him, to justify his revised executive order suspending the entry of all refugees and people from six countries, including Somalia. Yet the risks of abuse extend to everyone. Speaking about Mohamuds conviction, Patrick Toomey, a staff attorney at the American Civil Liberties Union, noted to the Oregonian that the appellate courts decision to accept warrantless evidence rests on the faulty premise that Americans lose the core protections of the Fourth Amendment when they communicate with relatives, friends, business associates, or anyone else abroad.

Because of nervousness about Section 702s reach and potential for misuse, Congress provided for its expiration at the end of 2017, unless a new bill is introduced to renew itwhich the President would need to sign into law. There are libertarians and Republican officeholders suspicious of Big Brother who may challenge a renewal, and there are many Democrats who will warn against putting such powers in the hands of a man like Donald Trump. Yet promoters of the surveillance authorities in intelligence agencies claim that Section 702 is vital to counterterrorism and counterintelligence. It is hard to imagine the Republican-led Congress or the Trump Administration giving up the powers it confers, given the politics the Republicans have constructed around promoting fear of terrorism. And yet if the F.B.I. is still pressing Trumps advisers about their contacts with Russian intelligence by the time a reauthorization bill lands on his desk for signature, later this year, the President may have reason to think twice about what sort of warrant he is signing.

Follow this link:
Donald Trump Meets the Surveillance State - The New Yorker