Donald Trump speaking in April 2015. Image: Andrew Cline/Shutterstock
It's the nightmare scenario that many worried about: the US elects a president who uses the country's nearly omnipotent surveillance powers for his or her own gain. Edward Snowden has described the NSA's spying capabilities as the "architecture of oppression," with the fear being that it could be deployed by a malicious commander in chief.But what could President Trump, a man who has incited hate speech against minorities and threatened to jail his political rivals, actually do with the NSA? Could he turn the NSA into his own personal spying army?
"No. By and large it's not going to happen, if for no other reason than there's too many institutional safeguards that are setup," Bradley P. Moss, a national security attorney who represents intelligence community employees, told Motherboard in a phone call. If Trump did try to use the NSA for his own personal or financial gain, there would be a mass of resignations and whistleblowers coming forward, Moss said.Trump would not be able to authorize surveillance on, say, Hillary Clinton by himself, Moss said: at minimum, the order would have to go through a court (whether that particular court is essentially a rubber stamp is another issue, though). And on top of the legality of such an operation, there are the layers of lawyers and other institutions that handle such things."There's the internal bureaucracy that's designed to try to limit some of the more egregious or crazy ideas that might come from a political appointee," Moss said. "You couldn't just willy-nilly start spying on any particular American citizen you wanted," he added. Foreign targets don't have the same sort of protections, however.So the personal army theory is arguably off the table. But of course the president still has exceptional power to shake-up the agency, put different people in charge of it, and adjust some of the legalities around its work."Could there be aspects to which President Trump could expand or play around in the legal grey areas, more than say President Obama had, or President Clinton would have? Sure, that's absolutely possible," Moss said.
Executive orders in particular, which do not require Congressional approval to take effect, are fair game, and have played a vital role in surveillance legislation."A lot of the things that impose civil liberties restraints on the NSA are presidential directives, so he could easily reside those," Dave Aitel, a former NSA security researcher and now founder of cybersecurity company Immunity, told Motherboard in a phone call."The entire cyber policy of the United States may change. He's been much more progressively offensive," he added.But if Trump was to make changes, he likely wouldn't be able to without setting off alarm bells, though."I have no doubt he could not make the kinds of broad structural changes, for example through executive order, without Congress and the courts, as well as large segments of the executive branch being aware," Susan Hennessey, a fellow in national security at the Brookings Institution think tank and former National Security Agency attorney, told Motherboard in a phone call.Even with those caveats, there are of course still substantial concerns with Trump's relationship with the NSA, and his position on surveillance and the intelligence community more generally.For Moss, it's Trump's penchant for secrecy that may threaten a lot of the reforms that have been accomplished in the past decade, especially with legal whistleblowers. Although there won't necessarily be legislative changes, policies may be curtailed internally: If people see raising concerns has a sure-fire way to be punished, then "those people are going to back off, and are not going to risk it," Moss said."My specific concern is ensuring that our intelligence priorities continue to reflect the priorities of the nation, and that we continue to have vital, productive relationships with our allies," Hennessey added.