Can the US President order a wiretap?

March 17, 2017 5:55 AM

In a March 16, 2017 article in the Washington Times, Andrew Napolitano made the claim... "Obama was the president and as such enjoyed authority under the Foreign Intelligence Surveillance Act to order surveillance on any person in America, without suspicion, probable cause or a warrant." Does the FISA law grant the President this power?
posted by grahahw to Law & Government (6 answers total)

I'm no expert on FISA, but my understanding is that the president is only empowered to act in this way when ordering surveillance of foreign nationals where there is little or no chance of accidentally surveiling U.S. nationals in the process (which would require a warrant). See here.
posted by saladin at 6:34 AM on March 17, 2017 [1 favorite]

Southern Poverty Law Center: The Washington Times Has A History Of Hyped Stories, Shoddy Reporting And Failing To Correct Stories
posted by Room 641-A at 6:44 AM on March 17, 2017 [10 favorites]

Why is nobody mentioning: the current guy-in-the-office can believe, and so likely does believe, that that office has this authority. Which also means that anybody who knows how to persuade him also de facto has this authority.
posted by amtho at 7:13 AM on March 17, 2017 [6 favorites]

Napolitano's statements are false and betray ignorance of how the FISA process works. FISA surveillance requires review and probable cause. I second Room 641-A's comment: the Washington Times is not a reliable newspaper.

The ACLU has a good explanation of the FISA process specifically related to Trump's unsubstantiated claims. You should read the whole article, but key quotes are

the FISA Court judge must find — based on evidence presented in the application — that there is probable cause to believe that the “target” of the surveillance is a foreign power or agent of a foreign power. The judge must also find probable cause to believe that the phone line, email account, or computer where the surveillance will occur is being used by a foreign power or agent of a foreign power. ...

If an American is the target of the surveillance, that application must be reviewed and approved by the attorney general before it goes to the FISA Court. ...

Regardless of who the target was, however, it is critical to note that this FISA surveillance would have been individually approved by a court and could not simply have been conducted on President Obama’s order

There's no evidence that a FISA order was even issued for anyone in Trump's campaign staff; some articles have made that claim but no one has presented verifiable evidence. If a FISA order were requested it would likely have been ordered by the FBI, not Obama's own hand. It then would have been reviewed by the FISA judge for probable cause. If it targeted a US citizen the Attorney General would also have reviewed it.
posted by Nelson at 7:27 AM on March 17, 2017 [8 favorites]

Trump was a US citizen on US soil so FISA is irrelevant (the F stands for foreign). The FBI would have to get a warrant. The CIA is not supposed to act on US soil. The NSA as a secret military intelligence agency is, in theory, bound by various laws, but in fact is allowed to break those laws and then deny they did. As commander in chief Obama could issue direct orders to them in secret, and their work product would also have been secret. The only question is whether they would do as ordered or would respond with a (secret) refusal. In theory they would refuse, but in my opinion, asking the NSA to do a bit of spying is like asking your dog if it wants to go for a walk.

None of this means that I believe Obama actually spied on Trump, but I believe he had the capability to do it.
posted by w0mbat at 10:18 AM on March 17, 2017 [2 favorites]

As a matter of law, Mr. Napolitano's claim is false, and you or anyone else can check that for yourself, if you wish.

The Foreign Intelligence Surveillance Act is codified in 50 US Code Chapter 36. Subchapter one deals with electronic surveillance. As Saladin pointed out above, FISA does have a provision authorizing warrantless electronic searches, but it requires the attorney general to state in writing and under oath that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."

(As an aside, Attorney General Sessions would have access to those certifications. In answer to a journalist's question he denied that he gave President Trump any reason to believe that he had been wiretapped by the prior administration.)

Other searches under the FISA must be conducted by court order and the requirements are stringent. (Look at sections 1804 and 1805.)
posted by ferdydurke at 9:59 PM on March 17, 2017