Executive Branch Intelligence Surveillance & Privacy

The “Grand Bargain” at Risk: What’s at Stake When the President Alleges Politics in Intelligence

Jack Goldsmith, Benjamin Wittes
Tuesday, April 4, 2017, 1:00 AM

The U.S. intelligence community is on the verge of a crisis of confidence and legitimacy it has not experienced since the 1970s. Back then, the crisis was one of the community’s own behavior. In the 1950s, 1960s, and 1970s the intelligence community used its secret powers of surveillance and other forms of government coercion—often but not always at the behest of its political superiors—to spy on and engage in operations against Americans for political ends.

President Trump stands before the CIA Memorial Wall the day after his inauguration / The White House

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The U.S. intelligence community is on the verge of a crisis of confidence and legitimacy it has not experienced since the 1970s. Back then, the crisis was one of the community’s own behavior. In the 1950s, 1960s, and 1970s the intelligence community used its secret powers of surveillance and other forms of government coercion—often but not always at the behest of its political superiors—to spy on and engage in operations against Americans for political ends. At that time, politicians really did use executive branch intelligence tools to seek to monitor and harm political enemies, and exposure of that reality nearly destroyed the intelligence community. The problem was Hoover’s illegal wiretaps, bugs, and break-ins, and his attempts to annihilate Martin Luther King and others; it was NSA’s and CIA’s domestic espionage and propaganda operations; it was Richard Nixon’s many dirty tricks.

The community survived because it entered a “grand bargain” with Congress and the American people in the 1970s. And it is that very grand bargain that today’s crisis now threatens.

Today’s crisis is sparked by allegations, both by President Trump and by some House Republicans, of political misuse of the intelligence community by the Obama administration. Whether the allegations are entirely false or turn out to have elements of truth, they put the intelligence community in the cross-hairs, since some of the institutions that are supposed to be key legitimators are now functioning as delegitimators. After all, entirely appropriate investigations of counterintelligence can easily look like inappropriate political meddling, and if the President and the House Intelligence Committee chairman are not merely not defending the intelligence community but are actively raising questions about its integrity, the bargain itself risks unraveling.

The central elements of the grand bargain were these: the president and his intelligence bureaucracy were allowed to maintain robust surveillance and espionage capacities, including domestically. But in exchange, Congress subjected them significant legal restrictions on how they collected, analyzed, and disseminated intelligence information; a bevy of lawyers throughout the intelligence community and, over time, in the Justice Department monitored and enforced those restrictions; domestic surveillance required a court order, including a court order from a new court, the Foreign Intelligence Surveillance Court, for foreign intelligence investigations; and two new committees, the Senate and House Intelligence committees, were to be kept “fully and currently informed” of all significant intelligence activities, and would have robust oversight authorities. The idea was that the use of these powers would be documented and watched by institutions that could be trusted to keep secrets but would act as credible surrogates for public oversight mechanisms.

These reforms proved vital. Intelligence collection, including in the homeland, is essential to our security. But it is also among the most dangerous of government powers because it is so consequential, so secret, and so easy and tempting to abuse. Its legitimacy is inherently fraught. So it is crucial not merely that the entire process be above board politically but that it be seen to be above board. If enough people believe that the intelligence community is a political instrument of those in power to be used against opponents, it actually doesn’t matter if it’s untrue. So the key function of the grand bargain was not merely keeping the intelligence community actually within the law but also validating it to a public conditioned by Watergate and COINTELPRO to believe the worst that the intelligence community was functioning within the law.

This system did not always work perfectly, and it has every so often required strengthening. Sometimes, as in Iran-Contra, it was because of real abuse. Sometimes, it was because of perceived abuses. Sometimes, it was the result of changed technology. Sometimes, it was the result of changed threat perception.

But on the whole, the system of overlapping internal and external checks, combined with massive changes in intelligence community culture, worked well. It gave the intelligence community legitimate operating space in the midst of a political culture obsessed with movies about intelligence community plots and rogue operations. Even as Hollywood made Minority Report and Enemy of the State, the intelligence community could carry on its business. That was a huge accomplishment.

Another achievement of the grand bargain was the actual elimination of the great evil of governmental use of its vast intelligence apparatus for politically-motivated surveillance. And while it did not eliminate the perception in the mass culture that this was going on, it did give the community a powerful response to suggestions of politically motivated misconduct. The response went like this: here are the rules; here are the bodies we report to on our operations; we did not violate the rules; and our many oversight bodies, who in the round are credible actors, were kept fully informed.

This basic system survived even the Snowden revelations. Many people found Snowden’s disclosures of vast intelligence collection shocking. But though Snowden disclosed many technical legal problems with this surveillance, as well as some controversial legal judgments signed off on by the executive oversight apparatus, it also showed that the the problem of politically motivated surveillance simply didn’t exist. None of the thousands of pages of NSA revelations pointed to anything like the venal activities of the 1970s and before.

Yet events of the last year have put the domestic political use of surveillance tools front and center once again. And ironically, today it’s the President of the United States and the Chairman of the House Intelligence Committee who are alleging precisely that which the Snowden revelations did not show.

The DNC hack was an unprecedented interference in the US electoral processes. By design, it was meant to turn the political system against itself, and it succeeded. It called into question for many Americans the legitimacy of the election, though there is no evidence that any votes were tampered with or that the electoral outcome failed to reflect the will of majorities in states constituting an Electoral College majority.

We know that the Obama administration hesitated to go public with what it knew about Russia’s activities for fear of the appearance of its own meddling in the election. We don’t yet know for sure what it did behind the scenes.

The administration was in an impossible position. It would have been grossly irresponsible not to take the counterintelligence angle of the Russian operation extremely seriously and to find out what was going on. But the pursuit of it necessarily entered the dangerous land of surveillance related to politics, particularly because there were, in fact, a bizarre number of connections between Russian intelligence and figures close to Trump. In other words, no responsible government would have failed to investigate the counterintelligence angle, despite—and indeed because of—its political context. Yet the political context always spelled trouble for a community that wants, and needs, to stay clean of politics.

This all had a predictable fallout, even before Trump and Nunes got involved. The intelligence community reached the firm conclusion of Russian meddling to aid Trump. But to protect sources and methods, it revealed essentially no evidence supporting that conclusion. Because its conclusion had deep political implications, the failure to provide evidence left its credibility damaged or suspect with that portion of the country that actually needed convincing. It was only when Republican members of Congress, and then Trump political appointees, began to confirm that they had seen and believed the evidence that the claim seemed credible to those not inclined to believe it from the beginning.

But the questions about the connection between Trump associates and the Russians, and possibly the DNC hack, continued. The last few days have seen not merely FBI Director James Comey confirming that there has been an investigation of this since last summer but a plethora of new disclosures about connections between figures associated with Trump and the Russians.

We don’t yet know whether and to what degree any collection on Trump associates during the Obama administration was targeted or incidental. Either might well have been justified, depending on the evidence and compliance with FISA. Assuming that any collection was only incidental, we also don’t purport to know whether and to what degree the normal rules of minimization and sharing and unmasking were complied with. Yesterday, Eli Lake of Bloomberg View reported that Obama’s National Security Advisor, Susan Rice, sought to “unmask” the identities of U.S. persons, including Trump transition officials, that the government had incidentally collected and minimized in surveillance against foreign officials. There is no reason (at least not yet) to think Rice or any other Obama officials did not follow the appropriate rules here. We assume that in this super-sensitive context, the Obama team would have been super-scrupulous to follow the rules. But we don’t know.

We do know that material incidentally collected about conversations involving Michael Flynn and others was subsequently leaked (starting in February) in a fashion that was neither ethical nor lawful, and which grossly violated the civil liberties of people the grand bargain was specifically designed to protect--though we do not know who was responsible for these leaks.

Trump is wholly wrong to dismiss the underlying legitimacy of the investigation and to focus only these leaks. He is not wrong, however, to decry these leaks, which clearly suggest that somebody was indeed engaged in the political misuse of intelligence. That doesn’t mean that the collection or reporting was itself inappropriate. But it does create an environment in which the terms of the grand bargain have not been respected by those sworn to defend it. In particular, the damage done by the leaks about Flynn and his contacts with the Russian ambassador—whether by the so-called “deep state,” or former Obama administration officials, or whomever—cannot be overstated. Flynn may be a bad actor or he may just be irresponsible. But these leaks violated the core commitment not to politicize the use of surveillance tools or the fruits of their use.

So even if everything the Obama team did in the collection and reporting and unmasking was lawful and legitimate, the combination of the unfortunate and unprecedented context in which officials acted and the bevy of leaks that followed permits whatever it did to be construed uncharitably. It permits lots of people to believe that what happened here was political surveillance or politically-motivated surveillance or surveillance of one’s political enemies. And this is, of course, exactly what Trump and Nunes are insinuating.

Such insinuations, if true, would be a devastating blow to the intelligence community’s authority and credibility. But even assuming they are not true, the mere insinuation of politically motivated use of the intelligence services—particularly by the President, for whom the community works, and the House intelligence chairman, who is one of the four key congressional validators of the priority and legality of its conduct—harms the legitimacy of the community and its use of FISA. It muddles questions about legitimate surveillance with allegations of politically motivated surveillance, which is the great evil the post-1970s reforms sought to eradicate.

But of course, Trump did more than merely insinuate. He alleged, and he did so in inflammatory terms. His tweets on March 4 baldly claimed that Obama illegally surveilled Trump Tower, and an endless stream of claims followed about politically motivated surveillance of Trump during the election. The allegations continued even to yesterday, with Trump tweeting:

The political strategy here is laid out candidly in this generally tendentious essay yesterday by Andrew Klavan, entitled “Obama Spied, Media Lied,” which makes clear the ambition to change the subject from Russia’s intervention to one of the political misuse of the intelligence apparatus. Writes Klavan:

Once you wave away all the smoke created by our dishonest media, the story of this past week was pretty simple. The Trump-Russia-Conspiracy narrative is falling apart. The Obama-Spied-on-his-Political-Opposition narrative is coming together. The media has given credence to Democrat Congressman Adam Schiff's hysterical charges about how the Republican chair of the committee, Devin Nunes, made his latest discoveries. But Schiff is a dishonest McCarthyite, spewing insinuations and accusations without any proof to back them up. Nunes, on the other hand, has obviously gotten hold of solid intel showing that Obama spied on Trump and his people, pretty much as the president tweeted back on March 4. The willing Democrat executioners of truth—i.e. the news staffs at ABC, CBS, NBC, CNN and the New York Times—give equal weight to the statements of both men, making it seem like the House Intelligence Committee has simply descended into partisan bickering. But that's a lie. Nunes has found something. Schiff is smearing him and the president. Those two actions do not deserve the same sort of coverage.

We won’t pause to point out the untruths here beyond the obvious one that this developing narrative, even if true, is not at all “pretty much as the president tweeted back on March 4.” It would likely do little good, in trying to defeat this false narrative, to point out that if the intelligence community had been in any way targeting the Trump team last year for collection, that should be bad news for the Trump team, since it would imply, in normal circumstances, wrongdoing. Indeed, the whole point of the narrative appears to be to discredit the Russia investigation (or some elements of it) by shifting the story away from Trump connections to the Russian wrongdoing to alleged wrongdoing in the investigation of the Russia matter.

This appears to be Trump’s larger aim: To muddle the legitimacy of the intelligence community, and of FISA as a tool in this context, all with the aim of delegitimizing the Russia investigation and, perhaps, of delegitimizing broader internal executive branch checks on the presidency.

And that is what makes the current situation so dangerous: that in defending his own situation, Trump is attacking the entire structure of legitimacy of the intelligence community. The whole intelligence collection system—which has an importance that far transcends its undoubtedly large importance in this discrete context—is vulnerable here for the simple reason that the intermixture of politics with intelligence collection is the intelligence system’s Achilles heel. Once surveillance is seen through a domestic political lens, with domestic political winners and losers, it has a very hard time acting with needed public credibility.

Making the situation all the more dangerous is the fact that the FBI is investigating the president’s team—a fraught endeavor in any context, but one here made all the more fraught because of the Russia angle and the secrecy that necessarily requires.

The damage this episode threatens to the grand bargain is among the most serious, harmful, and potentially permanent institutional threats that Trump—helped, ironically, by his bureaucratic antagonists responsible for the leaking of Flynn materials—is capable of bringing about. There is a crying need for credibility here, for an institution that can sort out truth from fiction in a way that the American people, or at least large chunks of it, can have confidence in. What the country needs is an institution that can establish credibly at least the following:

  • The connections (or not) between all of Trump’s team and the Russian interference in the election.
  • The legitimacy (or not) of whatever investigative steps were taken before the election and during the transition--including any use of surveillance techniques with respect to the Trump team and the Russian interference.

The first hope for credibility here is the FBI. Whatever else one might think about Comey, he has certainly not acted in a manner that reflects any sort of political bias against Trump. This gives him cover—along with his other indicia of independence—to reach the truth on Russia and the Trump team. In addition, Comey remains a credible voice on Capitol Hill with many Republicans, which is important. If results vindicating the prior administration or implicating people close to Trump are going to stand for something, having an authoritative investigator with credibility among Republicans will be key.

But an FBI investigation has limits. It generally exists not to publicly report on its findings. If it doesn’t bring a criminal case, particularly in the national security context, it may produce very little public information. And any information it might reveal if it brings a case would likely be selective.

This is why the congressional investigative side is so important and the collapse of bipartisanship on the House side so upsetting. The key here is to have credible bipartisan voices to authenticate Comey’s judgments, and to discern and confirm the facts where he does not report them. We need voices who can look at the evidence and call it like they see it, even when it goes contrary to political interest. In Washington, after all, actions contrary to political interest are always the most credible, and often the only credible, actions.

John McCain, Lindsey Graham, Marco Rubio, and other Republicans who acknowledged the evidence of Russian hacking and contradicted the President on it played a hugely important role a few months ago. And today, likewise, only (or primarily) Republicans can remove the sting of the President’s charge that the Russia investigation is baseless or biased against him. And only (or primarily) Democrats can speak with credibility if it turns out that some of the investigative techniques used in the Russia matter were, as the president has charged, inappropriate or if it turns out that it was Obama administration officials who leaked FISA materials.

It is also why the Senate Intelligence Committee investigation is so important, and why its actions to date are so reassuring. At an extraordinary joint appearance with Senator Warner last week, Republican Senator Richard Burr, who chairs the Senate Intelligence Committee, pledged: “We are aggressively going to continue the oversight responsibilities of the committee as it relates to not only the Russian involvement in the 2016 election, but [also to] any contacts by any campaign individuals that might have happened with Russian government officials.” And even more importantly, ranking Democrat Senator Mark Warner, standing aside Burr, vouched for him and the committee, saying that "we are working together very cooperatively" to get to the bottom of Russia's interference, and that he and Burr "trust each other" and their fellow committee members to get to the bottom of the matter.

The Senate Intelligence Committee shows every indication of doing a credible investigation. The initial hearing last week was extraordinarily impressive in its seriousness. One of us has urged the creation of a select committee, and only time will tell if this investigation proves adequate for the long haul or whether it proves a transitional step along the way to a different investigative structure. But it is, at a minimum, performing an enormously important service right now.

Don’t underestimate what’s at stake here, which is not just the fate of the Trump presidency. What’s at stake is the entire structure of legitimacy we have built for the intelligence community in the post-Watergate era. Because if the President and the House Intelligence Committee Chairman can discredit an investigation of foreign interference in an American election and collusion with that effort by the president’s campaign by alleging improper political misuse of the intelligence authorities by the prior administration, if leaking FISA intercepts is an accepted way to go after a political opponent, and if nobody can credibly say who’s telling the truth and who’s lying, then the grand bargain has truly failed, with consequences that are hard to fathom.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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