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Trump’s Wiretapping Charge Could Contain Some Explosive Truth

Posted on Mar 14, 2017

By Scott Ritter

(Page 2)

The existence of a Flynn-Kislyak transcript that identifies Flynn by name represents a deviation from the normal practices of U.S. law enforcement and intelligence that is not readily explained. If the Flynn conversation was collected under FISA authority, then Trump is correct in his charge that his campaign was the subject of wiretaps authorized by the Obama administration. To date, the existence of any such FISA authority has been denied by U.S. officials, including former Director of National Intelligence James Clapper.

Likewise, if the Flynn transcript was the byproduct of foreign intelligence collection activities by U.S. intelligence agencies, the fact that it exists in a form that identifies an American citizen by name would mean that the transcript was produced outside channels routinely subjected to the kind of legal oversight designed to protect the constitutional rights of American citizens. The Washington Post states that the FBI, and not the CIA or the National Security Agency, was responsible for intercepting the Flynn conversation with Kislyak. It is highly unlikely, however, that the FBI, well versed in American law as it is, would be involved in the preparation of a transcript of an intercepted conversation that so blatantly violated the constitutional rights of an American citizen, let alone allow the existence of that conversation to become public.

There are some alternative explanations for the existence of the Flynn transcript that do not involve the FBI engaging in massive violations of the law. The United States routinely coordinates with the intelligence services of allied nations regarding the collection of conversations of persons of interest, including American citizens. If a conversation was collected by a non-U.S. intelligence agency, such as the British or Dutch intelligence services (nations that have been mentioned in reports about Trump-related intelligence shared with the United States), it would not be subjected to minimization at the source of the collection. Once such a transcript came into the possession of an American law enforcement or intelligence agency, however, minimization standards would have to be applied by the agency receiving the intelligence report.

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It seems likely that the transcript of Flynn’s phone call with Kislyak was produced from a collection activity operating outside FBI control, and probably operating outside U.S. soil—for instance, from the Dominican Republic itself. The U.S. intelligence community, in coordination with a supporting government’s intelligence service, has the capacity to intercept Flynn’s phone calls in a manner that does not implicate either the FISA framework or other intelligence collection activities subjected to legal and legislative oversight.

The most likely candidate for this sort of role would be Britain’s Government Communications Headquarters (GCHQ)—the equivalent of America’s NSA. Indeed, the surprise resignation of the director of GCHQ, Robert Hannigan, on Jan. 23—three days before Yates presented evidence of Flynn’s intercepted conversation to the White House, has led some circles to speculate that GCHQ played a role in the interception of the Flynn-Kislyak conversation. GCHQ has long been known to target the communication cables used by Cable & Wireless Communications, a Caribbean service provider that operates in the Dominican Republic, where Flynn’s beach-side cellphone conversation took place. Information collected from these cables would be stored at GCHQ in the U.K., and as such be accessible by GCHQ analysts. It seems increasingly likely that Hannigan played a role in retrieving the Flynn-Kislyak intercept and turning it over to the United States.

If Hannigan had turned this transcript over through official channels, it would have been subjected to mandatory minimization under U.S. law and, as such, could not have been the basis of the Yates intervention on Jan. 26. This eliminates the FBI, the Department of Justice and the NSA as viable conduits for any Flynn-related intelligence sourced to GCHQ. If, however, Hannigan provided the Flynn transcript to the CIA using back channels, then John Brennan, CIA director under Obama, emerges as the leading culprit behind the leak—breathing life into Nunes’ assertion that the Flynn leak could only have come from the “highest levels” of the Obama administration.

Hannigan’s resignation from GCHQ was of such a sudden nature that the only plausible explanation is the kind of scandal that would be generated by the revelation of a GCHQ role in facilitating the abuse of intelligence information for the purpose of undermining the legitimacy and authority of the newly elected president of the United States. Hannigan’s resignation occurred a mere three days prior to British Prime Minister Theresa May’s visit to the White House on Jan. 26—the same day Yates briefed White House counsel on the Flynn transcript. A simple “connect the dots” exercise would have May cleaning house before any meeting with Trump in which the fact of such an explosive relationship would have most likely been raised.

Trump’s incendiary, and still publicly unsubstantiated, claim that the Obama administration ordered wiretaps of his campaign has attracted the attention of some members in Congress. Nunes himself has stated that his committee “will make inquiries into whether the government was conducting surveillance activities on any political party’s campaign officials or surrogates, and we will continue to investigate this issue if the evidence warrants it.” Sens. Lindsey Graham and Sheldon Whitehouse have requested that the Justice Department provide the Senate Judiciary Committee’s Subcommittee on Crime and Terrorism with “copies of any warrant applications or court orders … related to wiretaps” of the Trump campaign, noting that they “would take any abuse of wiretapping authorities for political purposes very seriously.”

By focusing their collective efforts on warrants and court orders, however, the various congressional oversight committees the American people count on to conduct effective, bipartisan oversight of U.S. law enforcement and intelligence activities may be barking up the wrong tree. What the senators and House members should be asking for is an accounting of all interaction between the CIA and GCHQ that transpired between Dec. 29, 2016, and Jan. 26, 2017, with a particular focus on the activities of both Brennan and Hannigan during this time. Both men should be subpoenaed, as well as Yates and any and all officials from the CIA, FBI, Justice Department, NSA and GCHQ who were involved in any manner with the production and provision of the Flynn transcript to American intelligence, and its subsequent use by U.S. government officials.

The transcript of Flynn’s telephone call with Kislyak needs to be forensically reverse-engineered, so that the entire chain of custody, from collector to consumer, and every step in between, is carefully vetted and assessed. At a minimum, such an investigation should produce indictments of all officials who knowingly violated Flynn’s constitutional right to privacy by possessing and releasing to the media information that was unlawfully obtained and retained by U.S. authorities. At most, the investigation will uncover an abuse of authority to use illegally acquired intelligence in a manner that would make the Watergate scandal pale by comparison. It also could uncover wrongdoing by Obama if he had in any way, shape or form been briefed on the existence of the Flynn transcript and failed to suppress and investigate its existence.

Schumer has indicated that such an investigation would spell bad news for Trump. “If it’s true,” Schumer said, “it’s even worse for the president. Because that means that a federal judge, independently elected, has found probable cause that the president, or people on his staff … have probable cause to have broken the law or to have interacted with a foreign agent.”

With all due respect to Schumer, he couldn’t be more wrong. What a genuine investigation will show is that the American people have a means of countering anyone who would deign to abuse their powers and that no one—president, senator, candidate or “deep state” operative—is above the law. Even Schumer, as much as he is opposed to Trump’s presidency, should support that.


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