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Oversight Report: Trump’s Wiretap Allegations and the President’s Surveillance Authority

Tuesday, March 7, 2017 21:54

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The news has been inundated with President Trump’s wiretap allegations. The President has personally accused the Obama Administration of surveilling his communications during the primary.

President Obama’s Former Deputy National Security Advisor for Strategic Communications responded, “No President can order a wiretap. Those restrictions were put in place to protect citizens from people like you.” The former Obama administration has denied it occurred or of having the authority to order the wiretap. This report is not looking at whether the act occurred or not but on the legal authority of the law.

“Power will intoxicate the best hearts, as wine the strongest heads. No man is wise enough, nor good enough to be trusted with unlimited power” Charles Caleb Colton

According to 50 USC 1802 sec (1) (a) (i), “Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order.” This law gives the initial impression that it only applies to foreign governments and agents. As such, it does not grant that the President the authority to wiretap a US citizen.

Unfortunately, this is not the case. The law does provide the authority to wiretapping a US citizen through an exception in section (b). This requires agencies to go through the FISA court. Otherwise, they could conduct surveillance without any oversight. The issue is when a US citizen is involved. Neither the law nor executive orders provide any guidance on how to apply this during the warrantless interceptions of US citizens.

This gray area is a serious concern since any surveillance conducted within the United States against a foreign agent or government would almost always involve interactions with American citizens. Surveillance of these communications and interactions would not be legal without FISA authorization. As an American citizen, if President Trump’s wiretap allegations are true, then a FISA would have been necessary.

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