Surveillance Versus Spying

Commentary

There’s so much being said about what was done to the 2016 Trump campaign—be it surveillance or spying—by pundits, lawyers, the extreme left wing, and just about anyone else who is paid to go on television and talk.

There’s a great deal of talk, but little that makes actual sense when examined. Everyone on the left, including the mainstream media and pretty much everyone in the Democratic Party, is trying to break this important discussion down to an insignificant argument over semantics.

But there’s a clear and important distinction, and it has nothing to do with semantics.

The left argues more or less that it’s an outrage that a “legal” act of mere surveillance be sullied with the tag “spying.”As a retired CIA operations officer, let me clarify and break down the differences.

There are many indications that the original Foreign Intelligence Surveillance Act (FISA) request was not legal but, in fact, something far worse. It appears to have been illegal.

Everyone involved who signed the FISA request has been documented to have known the Steele dossier was bought and paid for by the Clinton campaign and they were fully aware that not a single item of information in the dossier was confirmed to be true.

Yet, a FISA request is also an affidavit, and the FBI and Department of Justice (DOJ) leadership signed the FISA request and gave their oath to a judge that everything in that request was true to the best of their knowledge. The request didn’t include the fact that the Steele dossier was produced by the Clinton campaign and wasn’t an actual intelligence document.

Much of the aforementioned documentation was put together by Rep. Devin Nunes (R-Calif.) on the House Intelligence Oversight Committee, who put it into a memo called The Foreign Intelligence Surveillance Act Abuses at the Department of Justice and the Federal Bureau of Investigation, which was released to the public on Feb. 2, 2018.

A redacted version of the FISA request also has been released and we know that former FBI Director James Comey, Deputy Attorney General Rod Rosenstein, former FBI Deputy Director Andrew McCabe, and former Deputy Attorney General Sally Yates all signed off on the request.

Once approved, it had to be renewed every 90 days by both the FBI and DOJ leadership and submitted to a judge for approval. Comey signed three FISA extension applications and McCabe signed one. Yates, Rosenstein, and then-acting Deputy Attorney General Dana Boente each signed one.

The fact that the initial request and several subsequent extensions were approved by a judge has been the principal argument by Democratic Party leadership as to why there is no basis to suggest spying took place. Here’s the problem.

I read the original redacted FISA request and it’s reasonably conclusive that the Steele document was the main, if not the only, “evidence” cited as the need for the surveillance request. The signatories on the request didn’t tell the judge two very important things. As previously mentioned, firstly, they didn’t reveal the Steele document was from the Clinton campaign and not an intelligence product. They will argue this is not a lie, but the fact remains, it’s a critical piece of information that wasn’t provided and a textbook example of a lie of omission. The second problem is the signatories all knew the information in the Steele document was either unconfirmed or false.

Nunes has forwarded eight criminal referrals to Attorney General William Barr. The details have not yet been made public, but I think it’s a safe bet that Comey, McCabe, Yates, Boente, and Rosenstein have some serious legal problems looming large on the horizon.

The distinction between spying and surveillance may also play into the pending criminal investigations. Let me make the difference clear. There’s a legal requirement for all intelligence agencies that if we suspect a person in a U.S. organization is a spy for the Russians or any other country, then we must, by law, inform the owner or person in charge of said organization.

There’s no mistake here—at no point was then-candidate Trump informed that the FBI suspected a person working on his campaign to be a spy for the Russians. That’s a violation of the law and likely to be referenced in the Nunes referrals.

Worth recalling is that during the same general period of time under similar circumstances, the FBI discovered that Sen. Dianne Feinstein (D-Calif.) had had a Chinese spy working on her staff for 20 years. The FBI met with Feinstein and alerted her, as they are required to do by law.

If President Donald Trump had been informed at the time that the FBI suspected an employee of the campaign was a Russian spy, then what they did would have been surveillance. The fact the FBI violated the law and didn’t inform Trump means the surveillance was spying. Period.

Brad Johnson is a retired CIA senior operations officer and a former chief of station. He is president of Americans for Intelligence Reform.

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Author: Brad Johnson

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