National Security & Defense

Transparency Can Resolve the Wiretap Controversy

President Trump on the South Lawn of the White House, February 24, 2017. (Reuters photo: Yuri Gripas)

Over the weekend, President Trump leveled a bombshell accusation: that his predecessor in the Oval Office ordered that the phones at Trump Tower be “tapped” shortly before the general election. If true, as President Trump himself tweeted, it would be an abuse of executive power on a level with Richard Nixon’s.

The first thing to say about this episode is that Trump gives every indication of having tweeted without having the foggiest idea if his specific allegation had any factual basis. This is reckless even by the standards of Trump’s shoot-first, aim-later Twitter feed. It has created a sense of crisis within his own government and forced his aides to scramble for some justification after the fact.

They are pointing to press reports of surveillance requests by the Obama Justice Department prior to the election. These reports are from outlets of varying levels of credibility. But if they are taken at face value, the story they tell is this: In June of last year, the Obama Justice Department filed a request with the Foreign Intelligence Surveillance Act (FISA) court to permit surveillance of some of Trump’s associates, and perhaps Trump himself, on the grounds that they were possibly engaging in espionage on behalf of the Russian government. Trump himself was “named” in the application, although it is unclear if he was the target of the surveillance. In any event, the FISA court — which is famously generous when it comes to government requests — denied the petition.

In October, the Obama Justice Department submitted a second, tailored request to the FISA court. This request did not name Donald Trump, and it was granted. In mid January, the New York Times revealed that the FBI was conducting a “counter-intelligence” investigation focusing on three Trump associates: former campaign aides Paul Manafort, Carter Page, and Roger Stone. The Times conceded, however, that it was unclear whether the surveillance had anything to do with Donald Trump or the presidential campaign. (None of those individuals was formally employed by the Trump campaign in October 2016.) It’s unclear, too, if that surveillance is ongoing.

None of these reports in the press has been independently confirmed. Barack Obama, through a spokesman, has denied any wrongdoing, as have several high-ranking Obama White House officials, including Ben Rhodes and former director of national intelligence James Clapper. But these are hardly reliable sources. Rhodes openly bragged about lying to reporters to sell the Obama administration’s Iran deal, and Clapper lied under oath during 2013 testimony to Congress. And their denials in this instance have notable escape hatches. President Obama denied that his IRS ever targeted conservative nonprofit groups, even when the evidence that they had done so was beyond doubt. The people who likely know what actually happened are either unreliable or not talking.

Needless to say, this situation is unsustainable. If there were legitimate fears that associates of the now-president were foreign agents, the president and the public deserve to know. Likewise, if that was simply a pretext for surveillance of Barack Obama’s political opponents, the president and the public deserve to know. However this turns out, the situation is extraordinary, and transparency is in order.

There is a simple way to achieve it: The president should demand the relevant FISA applications, if any, that the Obama Justice Department submitted. The president can declassify any documents at will. Contrary to the outcry at the possibility, such presidential intervention would not constitute political interference in an ongoing investigation, because FISA surveillance is not a law-enforcement matter (as our own Andrew C. McCarthy has explained at length). President Trump should then make as much of this material as possible public.

The public deserves to know the facts. The administration should pursue them with more diligence and sobriety than the president showed in setting off this firestorm.


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