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The real suurveillance scandal is hidden in plain sight

Last week, President Trump tweeted that President Obama wiretapped him during the 2016 presidential campaign. That’s probably not true. Since the intelligence reforms of the 1970s, it’s been unlawful for presidents to order targeted wiretapping of Americans. Only prosecutors can do that, and with judicial approval.

While Trump likely got it wrong on the details, he’s not wrong in a broader sense: It’s far too easy for the United States government to wiretap Americans’ communications, and that’s thanks in part to President Obama’s actions in office. But if Trump is really concerned about the government’s legal authority to wiretap Americans—including him—he can do something about it when a major post-9/11 surveillance law is up for reauthorization at the end of this year.

Some historical background is required to understand the significance of Trump’s comments, and the upcoming congressional battle over warrantless spying.

In 1978, Congress passed Senator Ted Kennedy’s bill to rein in domestic surveillance, the Foreign Intelligence Surveillance Act (FISA). Signed into law by President Carter, the statute was the government’s answer to explosive revelations about domestic spying unearthed by the 1971 FBI robbers, Senator Frank Church’s congressional committee investigations, and the press throughout the preceding years. The FISA created a new kind of intelligence oversight regime—one that would largely function behind closed doors, out of sight of the vast majority of the American public. But despite the secrecy, the law was an improvement, as it for the first time required intelligence agencies to answer to congressional committees and submit surveillance requests to a new judicial body, the Foreign Intelligence Surveillance Court (FISC).

After 9/11, the Bush administration secretly began flouting the FISA by allowing the NSA to conduct warrantless wiretapping of Americans’ international communications. New York Times reporter James Risen found out about the warrantless spying programs before the 2004 election, but the Times didn’t publish the explosive revelations until 2005, after Bush had already secured his second term in office.

In 2008, Congress passed the FISA Amendments Act (FAA), greatly expanding surveillance powers. Inside that bill was a provision called Section 702, which put congress’ stamp of approval on the Bush warrantless wiretapping scheme. In one of his last acts as a Senator, Barack Obama voted for the controversial proposal. In one of his last acts in office, President Bush signed it into law. The ACLU immediately filed suit to challenge the constitutionality of Section 702.

 

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