The Daily - Tuesday, Feb. 6, 2018

Episode Date: February 6, 2018

The Republican push to release a classified memo has brought attention to the Foreign Intelligence Surveillance Act, and to the long battle to determine when national security concerns outweigh civil liberties. What has surprised many is the side Republicans chose this time. Guest: Charlie Savage, who covers national security and the law for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily Watch. Today, the Republican push to release the memo has brought attention back to FISA and the years-long battle over when national security should trump civil liberties. The surprising thing this time is which side Republicans have chosen.

It's Tuesday, February 6th. You're reporting tonight the FBI obtained a FISA warrant on Carter Page, a Trump campaign advisor. Republicans allege that the memo details abuses obtained a FISA warrant on Carter Page, a Trump campaign advisor. Republicans allege that the memo details abuses in the FISA warrant process. Four times FBI officials went to a federal surveillance court. Were those wiretaps attained through a FISA warrant that was based on the Trump dust? Used in this secret court that we can't watch the proceedings of. That the memo centers on this question of the FISA application.

The FISA court was fooled by a law. FISA judge. FISA. FISA. FISA. Charlie, what is FISA? FISA is the Foreign Intelligence Surveillance Act. Charlie Savage covers national security and the law.

It is a law that was passed by Congress in 1978 to regulate and govern the government's wiretapping on domestic soil for the purpose of national security. That is for looking for spies and members of terrorist groups and agents of foreign governments and organizations that may be operating here on domestic soil as opposed to ordinary solve-the-crime criminal investigation wiretaps, which are governed by a different law and a different set of procedures. There has never been a full public accounting of FBI domestic intelligence operations. Therefore, this committee has undertaken such an investigation. In the 70s, amid the fallout from Watergate and the end of the Vietnam War and the general period of distrust in the government and revelations of government wrongdoing, was something called the Church Committee.

Its purpose is not to impair the FBI's legitimate law enforcement and counter-espionage functions, but rather to evaluate domestic intelligence according to the standards of the Constitution and the statutes of our land. A congressional oversight investigation into years of intelligence abuses by presidents of both parties, one aspect of which was using intelligence wiretapping to spy on their domestic political opponents. And we have seen today the dark side of those activities where many Americans who were not even suspected of crime were not only spied upon, but they were harassed,

they were discredited. They were spying on civil rights leaders, lawmakers of the other party, labor union leaders, undertaken in the name of looking for Soviet communist subversive influences in those who were against whoever was president at the time. But really, this was an abuse. And the most famous example of that was the FBI spying on Martin Luther King Jr. and then trying to blackmail him with information they had gathered about his extramarital affairs. Right. This development of the concept of nonviolent confrontation or nonviolent protest was seen as a threat to law enforcement and something the Bureau was indeed unhappy about.

The plan here is to completely discredit Dr. King by, quote, taking him off his pedestal and to reduce him completely in influence. And so Congress began negotiating to enact a statute that would regulate national security wiretapping inside the United States. Among the important things about FISA is that it created a court to hear applications from the Justice Department on behalf of the FBI, usually, or the NSA, to target someone on American soil for this purpose. And it required the government, when wiretapping on domestic soil, to get a warrant from a judge on that court, or else it would be illegal to wiretap. So once a FISA judge approves a request,

illegal to wiretap. So once a FISA judge approves a request, what is the NSA or the FBI or whoever has asked for a warrant likely to do from there? So they get their order. The order says, yes, you may have authority to wiretap this person for the next 90 days. The judge will also have decided that there's probable cause that the target is likely to use certain facilities, is the term of art. And a facility could be something like a phone number or an email address to communicate. The judge will also issue secondary orders to providers. The secondary order will say, Google or AT&T, you are ordered to provide surreptitious access to the communications of this target for the next 90 days. And so the FBI will then take that to the provider and the wiretap will commence.

So as a country, we don't really hear or grapple with this law, FISA, again, really, until September 11th, 2001, right? The public does not hear much about FISA until well after 9-11. But behind the scenes, there was a growing problem with FISA. And the problem was this. FISA was written to cover the technology of its era. And it was carefully written so that the kind of bulk surveillance of international communications were not covered by FISA in 1978. But then technology started to change. There's two ways in which, in this era, the communications of people all around the world are increasingly available from domestic soil. One is because the United States invented the internet and had a huge head start in laying down fiber optic cable, we act as sort

of a hub to the global network. Compounding that, Silicon Valley invents free email available to anyone with a web browser through services like Hotmail and now Gmail. Anyone can get an account anywhere in the world, and their messages, especially at first, are routed to Silicon Valley, and they sit there until someone else who also has an account, even though they may also be a foreigner, logs into their email to retrieve them. And so the messages are also inside the United States. So for both of these reasons, there's a rich stream of global communications crossing the backyard of the NSA. But if it intercepts them on domestic soil, that is covered by FISA.

Because FISA covers interception from a wire on domestic soil. And this set off a slow-motion crisis inside the intelligence community. And so into the 90s, as the internet grew explosively, it became a bigger and bigger problem from the vantage point of the NSA. And that brings us to 9-11. We'll be right back. So how does the September 11th attack intersect with everything that you've just laid out for us? So leading up to 9-11, these pressures of the inability of the NSA to access these foreign communications became more and more acute. And it was a conversation happening inside

classified circles inside the executive branch because they did not want to disclose that this had become a problem because that would also tell the world that, hey, your communications are actually crossing our soil where we can dip into them. On 9-11, of course, the United States is attacked and everything changes. Conversation shifts far away from any concern about civil liberties, to say the least, but also the rule of law. And so I asked people in my administration to analyze how best for me and our government to do the job people expect us to do, which is to detect and prevent a possible attack. That's what the American people want. The proposal arises to start wiretapping communications with one in the United States and one in abroad without obeying FISA.

By making the secret claim the President Bush need not obey this statute because he is the commander in chief and this is war and Congress cannot constitutionally tie his hands against doing something that he thinks is necessary to protect national security. And so from that secret claim arises the secret Stellar Wind program, better known as the Warrantless Wiretapping Program or the Terrorism Surveillance Program as the Bush administration dubbed it when it came to light because in 2005, the New York Times disclosed its existence. My personal opinion is it was a shameful act for someone to disclose this very important program in time of war. The fact that we're discussing this program is helping the enemy. The Times report set off a firestorm about civil liberties and the rule of law.

When I read that front page story, before I even finished it, I mean, after I read the headline, I was sending emails to sort of everybody within the ACLU. We got to get on the phone immediately. And does the law really allow the president to do anything like that? I think the executive branch and the presidency were designed specifically by the framers of our Constitution

to take charge in moments of emergency, to take charge in moments of war. Do you presume that all your phone calls are monitored in some way by the NSA? No, of course not. Your cell phone calls? Anything? No, but I would never talk. And finally, it's resolved in 2007 and 2008

with the enactment of what we now call the FISA Amendments Act, or Section 702, sometimes people call it. The legislation I'm signing today will ensure that our intelligence community professionals have the tools they need to protect our country in the years to come. And that carves out a hole in FISA. It creates an exemption to say you don't need a warrant. You can have a warrantless surveillance program as long as the target is a non-citizen abroad. the target is a non-citizen abroad. The bill will allow our intelligence professionals to quickly and effectively monitor the communications of terrorists abroad while respecting the liberties of Americans here at home.

And that sort of legalizes and normalizes the Warrantless Survey Once program. Meanwhile, ordinary FISA, FBI-style wiretaps of people inside the United States, are continuing along just as they've been doing since 1978, with applications going to a judge and judges issuing individualized orders. of us reviewed the intelligence information today, it is abundantly clear that the entire Mueller investigation is a lie built on a foundation of corruption. And how do these changes to the law help us understand the debate happening now around Carter Page and this memo from House Republicans. These changes to the law we've been discussing, these pressures, the sell or win program,

the reform have, in total, almost nothing at all to do with Carter Page. We think that he was under investigation as far back as 2013 by the FBI because he was talking to Russian spies and they thought he was the target of an attempt to recruit him. He eventually becomes a foreign policy advisor to the Trump campaign. And he goes to Moscow in June of 2016, just as these reports that Russia is trying to mess with the election are starting to bubble up, in September, as reports of Carter Page's Russian ties are coming to the surface, he quits the Trump campaign.

And then in October, the FBI applies to the FISA court for permission to wiretap him. And to target an American, you need an ordinary bread-and-butter FISA order of the sort that were conceived of in 1978 and have been issued all along despite these sideshow of the NSA warrantless wiretapping program. And is the FBI granted permission to do this kind of investigation by a FISA court? Yes. And we now know from the Nunes memo, which President Trump declassified, that the government goes back to the FISA court three more times and gets 90-day extensions of that authority, which means probably a collection of different judges, because there's only one sitting for a week, looked at the evidence and signed off on the finding that Mr. Page was probably an agent of foreign power or conspiring with one knowingly. This is bigger than anything anybody can imagine. When you say that, this makes Watergate like stealing a Snickers bar from a drugstore. Absolutely. And what is so controversial about this that's led to this memo being created by House Republicans? Is it that they keep going back and trying to renew this warrant or what?

The essence of the complaint by House Republicans is that the FBI and the Justice Department, to obtain this order from a FISA court judge or really a sequence of them, used information gathered by Christopher St by a former British intelligence operative whose past work U.S. intelligence officials consider credible. He gathered information on behalf of an opposition research firm called Fusion GPS on Russia and Trump and their ties. And the essence of their complaint is that the Justice Department did not adequately explain to the FISA court judge that Breaking news, CNN Learning tonight, that Hillary Clinton's campaign and the Democratic National Committee helped fund the research which led to the controversial and, frankly, salacious and disgusting in some of its allegations dossier Democrats were paying Fusion GPS for that opposition research at the time. And so the essence of their complaint is the judge was misled, that this information was politically motivated and might be biased,

and therefore it might not be credible. Today, when I read the material, I had that same shock feeling. I was like, wait a minute, this actually happened from our Justice Department and this FBI. That's how serious this is. That's why we're calling. That's how serious this is. That's why we're calling. What are the problems with that claim from House Republicans? So other people in Congress and elsewhere who are familiar with the underlying FISA court application say that the Nunes memo is misleading and mischaracterizes the information in several material ways. One is that they say that the judge was told that the Steele opposition research had a political motivation. They also apparently omit all kinds of other unrelated to Steele evidence that was submitted to the judge about Mr. Page,

about the Trump campaign, about Russia's efforts in general that came from other sources and methods. Well, you know, I can say because we, you know, we know from public sources that there's a lot that the FBI knew about Carter Page that had nothing to do with Christopher Steele's reporting. Carter Page had come to the attention of the FBI, indeed, years before he joined the Trump campaign. And therefore, misleadingly exaggerates the relative importance of the Steele information within the larger package. But if you read the memo, it's very misleading. And that's the the intent of the law. What do you make of how it's now being debated in the context of this Carter-Page controversy? One of the interesting things about this is that ordinary FISA, the kind with judges and applications and the necessity of an independent

judicial finding that someone was probably an agent of a foreign power is not that controversial. We've had tremendous controversy since 9-11 about surveillance, but it's been about the warrantless kind. So it's quite interesting that the meat and potatoes ordinary FISA is now at the subject of this intense controversy. And that also, by the way, is one of the ways we can judge what Republicans are now saying about what their intention and motivation is in focusing on this matter. What do you mean? Well, just in January, last month, that warrantless surveillance law, Section 702,

came up for renewal. And with Devin Nunes as the chief architect, and Paul Ryan is perhaps the most important player or one of them, they pushed through in Congress a six-year extension of that law while turning back an effort by reformers to impose more safeguards for the protection of Americans' communications when it gets sucked into that program. And so it's hard to reconcile that move in January with the claim now that they are simply interested in protecting civil liberties and are worried that a cabal of executive branch national security officials may have abused their authority to obtain this surveillance under false pretenses, because people who are worried that executive branch officials might abuse their surveillance authorities probably would have voted the other

way last month when it came to this warrantless surveillance program rather than turning back an attempt to prevent abuses by putting in more safeguards. There are legitimate questions about whether an American's civil liberties were violated by the FISA process. The American citizens that are represented before this court have to be protected. And the only place that can protect them is the U.S. Congress when abuses do occur. Our civil liberties are important. They are not burdens. Our civil liberties are the things that make our country great. And so that is the focus of the memo of a series of... So if this argument that Republicans are making about FISA seems essentially contradictory to their past actions around FISA,

and if they're treating this ordinary use of FISA as controversial in the first place where they never have before, does that sort of suggest that this whole debate over the memo isn't really about FISA at all? And that FISA is just sort of a manufactured controversy to mask a partisan fight? Even if it does turn out to be that this has nothing to do with FISA per se, it still is interesting that it's brought attention on to core FISA, the original 1978 law that's been governing national security wiretapping in this country for a generation. One of the interesting things about all this is that no one has ever seen outside of the executive branch and the FISA court an application for a FISA wiretap. The government has carefully protected those. And now, because President Trump has declassified the existence of this application, it's created an opportunity for the public, maybe, to see what those things look like.

And so today, for example, I and a colleague here at The New York Times, Adam Goldman, have petitioned the Foreign Intelligence Surveillance Court to unseal the actual application and make it public with whatever redactions remain necessary. remain necessary. We'll see what happens with that. But it's an opportunity spinning off of this partisan fight to really gain a better understanding of this law we've been living under since 1978. On Monday night, the House Intelligence Committee voted unanimously to release the Democratic rebuttal memo, which disputes Republican claims that the FBI and Justice Department abused their powers in seeking the wiretap for Carter Page. President Trump now has five days to review the document and decide whether it should be made public. document and decide whether it should be made public. If he refuses, the memo will remain classified unless the full House of Representatives votes to override the president. Here's what else you need to know today. All right, this is accelerating very steep drops now. We're five and three quarter percent,

1,500 points lower on the Dow. And you are looking live at something that in history and in point terms we have never seen, at the corner of Wall and Broad. On pace for the worst day since 2008. Ended with a loss of 1,175 to finish at 24,345. That's a drop of more than four and a5 percent, the biggest percentage drop since 2011. The Dow is now negative on the year. All of the gains from January and February have now been wiped out. Days after reaching all-time highs, the stock market plunged on Monday, wiping out nearly a trillion dollars in wealth.

By the end of the day, markets in the U.S., Europe, and Asia had lost all of their gains for the past year. In a statement after the markets closed, the White House seemed to distance itself from President Trump's repeated emphasis on the stock market. The president's focus, it said, is on our long-term economic fundamentals, which remain exceptionally strong. And the Times reports that lawyers for the president have advised him against sitting down for an interview with special counsel Robert Mueller, raising the possibility of a long legal battle over whether Trump must answer questions under oath. The lawyers are worried that Trump, who has a history of contradicting himself,

could be charged with lying to Mueller's investigators. But the advice puts them at odds with the president himself, who has publicly said he is eager to speak with the special counsel. said he is eager to speak with the special counsel. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.