Appearing to be torn between declaring President Donald Trump a liar and wanting to peg the administration as Russian conspirators, NBC’s Sunday Today decided to mischaracterize the Foreign Intelligence Surveillance Court. “We're throwing around the term FISA court, FISA warrant. Let’s explain a little bit Jeremy, what that means,” explained anchor Willie Geist, “The Federal Intelligence Surveillance Act, 1978, as you suggested in response to Nixonian domestic spying.”
The reason the FISA Court was in discussion Sunday morning, was because on Saturday Trump dubiously claimed that the former administration ordered the phones in Trump Tower to be wiretapped. As NBC national security analyst Jeremy Bash (who was the chief of staff for the CIA and DOD under Obama) told Geist, the president does not have the power to order such taps directly.
According to Bash, if federal investigators had enough evidence against someone they can go to the FISA court to get a wiretap warrant. “The Justice Department and the FBI go to them with a filing that says we suspect someone in the U.S. is a foreign power,” Bash said, “A foreign power say working for the Russians, for example.” Bash assumed what it could say about the Trump campaign:
Well, that would tell me that a federal judge found probable cause, meaning enough evidence to believe that either there was criminal activity or that there was foreign espionage activity in Trump Tower. Specifically, Willie, I think what it means is that a federal judge found that people in Trump's organization were colluding with the Russians.
But Bash’s account of how the FISA Court operates and what their alleged approval of a wiretap means for the Trump Team was designed to paint a very negative narrative.
Bash asserts that “And those federal judges are hard graders and they turn the Justice Department around all the time and say, go back and do more homework. Bring me more evidence.” But that claim is highly misleading. According to The Guardian, “The secretive US foreign intelligence surveillance court did not deny a single government request in 2015 for electronic surveillance orders granted for foreign intelligence purposes, continuing a longstanding trend, a Justice Department document showed.”
On top of that, CNN legal analyst Danny Cevallos admitted that the secrecy of the court has been an issue for the public. “That's been a criticism of the FISA court that it operates almost entirely in secret and on a probable cause standard that is much less than what the regular courts have to deal with,” he stated CNN’s New Day Sunday. Basically, the standard for probable cause is so low in the FISA Court that almost any request is permitted by the court. It’s why the court has the reputation of just being a rubber stamp.
Again, these facts were never brought up in NBC’s reporting. Given the rubber stamp nature of the FISA court, it’s a possibility that in the process of the FBI’s investigation into Russian meddling in the election they requested and were granted such a warrant regardless of probable cause. Which would mean Bash’s declaration of, “What it means is that a federal judge found that people in Trump's organization were colluding with the Russians,” is over the line.
Transcript below:
<<< Please support MRC's NewsBusters team with a tax-deductible contribution today. >>>
NBC
Sunday Today
March 5, 2017
8:04:10 AM EasternWILLIE GEIST: Jeremy bash was the chief of staff at both the Defense Department and the CIA, now he’s a national security analyst for NBC News. Jeremy, good morning good to see you.
JEREMY BASH: Good morning, Willie.
GEIST: Let’s assume for a moment—and we'll revisit this premise in a second-- that Donald Trump is on to something that President Obama, as he claims, bugged Trump Tower in the lead up to the election. Would President Obama have the power to warrant surveillance of a private citizen?
BASH: Absolutely not. After Watergate, after Nixon, Congress passed a law that said whenever the executive branch wants to engage in wiretapping or surveillance of people inside the United States, they have to go to a federal judge and get a specific warrant. And, Willie, I have looked at these warrant applications from my time inside the intelligence community. They are voluminous filings. They are done by career lawyers and presented to a federal judge. And those federal judges are hard graders and they turn the Justice Department around all the time and say, go back and do more homework. Bring me more evidence.
GEIST: We're throwing around the term FISA court, FISA warrant. Let’s explain a little bit Jeremy, what that means. The Federal Intelligence Surveillance Act, 1978, as you suggested in response to Nixonian domestic spying. How does it work exactly, what is a FISA court and how does it work?
BASH: Sure. The FISA court is made up of judges from the federal courts who are appointed to serve on this special panel and they work with the Justice Department. The Justice Department and the FBI go to them with a filing that says we suspect someone in the U.S. is a foreign power. That's a term you're going to hear a lot, Willie. A foreign power say working for the Russians, for example. This is what is done against spies like Aldrich Ames, Robert Hanson. When we expect someone is an American working for a foreign power, the FBI and the Justice Department go to these judges and they get a warrant to actually listen to their phone calls and read their e-mails.
GEIST: So, let's walk through the potential of what these tweets mean. Okay. The first one would be that the FBI legally wiretapped Donald Trump. What would that tell you, Jeremy?
BASH: Well, that would tell me that a federal judge found probable cause, meaning enough evidence to believe that either there was criminal activity or that there was foreign espionage activity in Trump Tower. Specifically, Willie, I think what it means is that a federal judge found that people in Trump's organization were colluding with the Russians.
GEIST: So, if the NSA-- Is it possible the NSA was listening to a foreign entity, say a Russian and Donald Trump's conversations or those of his associates were swept up in that collection of data?
BASH: Yes, that is another possibility, Willie. Which is that, the NSA was, for example, surveilling or listening to Russians overseas and the overseas targets were the target of the surveillance and they happen to be talking to people in Trump's office in New York, that could have been swept up. The intelligence agency calls it inadvertent collection. When that happens—What happens Willie, is that American's privacy is protected when those reports are disseminated, basically the Americans' names are blacked out. But that's different than what the President suggested here. He suggested his office was the target of the surveillance. And again, in that case, you would need a federal judge to approve that.
GEIST: And the last option is that President Trump made the whole thing up. Jeremy Bash, thank you so much, appreciate your time.
