Posted on 03/12/2017 4:47:37 PM PDT by drewh
Intelligence agencies could have inadvertently collected and then searched Donald Trump’s phone calls under a controversial loophole in surveillance law, experts say, even if it did not involve a wiretapping order from a federal court.
The intelligence community may legally conduct so-called “backdoor searches” of Americans’ communications, without a warrant, if the target of the surveillance is not a U.S. citizen.
If Trump or his advisors were speaking directly to foreign individuals who were the target of U.S. spying during the election campaign, and the intelligence agencies recorded Trump by accident, it's plausible that those communications would have been collected and shared amongst intelligence agencies, surveillance law experts say.
The intelligence community’s ability to use data gathered through incidental collection outrages civil liberties advocates, who say law enforcement agencies should be required to get a warrant.
But at least for now, it’s both legal and common — and could provide an explanation for Trump’s claim that former President Obama “wiretapped” Trump Tower.
“I'd bet a good lawyer could make a great case out of the fact that President Obama was tapping my phones in October, just prior to Election!” President Trump said in a tweet on Saturday morning.
The notion that Trump or his associates were wiretapped directly — much less at the behest of President Obama — has not been substantiated. Congressional intelligence leaders say they have seen no evidence of such a wiretap, and experts call the scenario far-fetched. For one thing, the president has been unable to directly order wiretaps since the post-Watergate reforms of the 1970’s.
There are just two authorities for wiretapping an American citizen — a Title III criminal warrant or a legal order from a clandestine intelligence court.
But there are two major surveillance policies under which intelligence agencies could have performed backdoor search of the president’s communications, neither of which would require a warrant. Both authorities govern U.S. surveillance of foreigners, one domestically and the other abroad.
Under the Foreign Intelligence Surveillance Act (FISA), which governs spying on foreigners within U.S. borders, law enforcement agencies can petition the closed-door intelligence court for a legal order to surveil a given target.
It is possible to obtain a FISA warrant on a U.S. person, but Justice Department officials would have to demonstrate to the court that the individual was acting as an agent of a foreign power.
Former director of national intelligence James Clapper over the weekend testified publicly that there was no FISA warrant on either Trump or his associates, but some reporting has suggested that the court did authorize the FBI to monitor the transactions of a pair of Russian banks.
If any of Trump’s associates communicated directly with the targets of that court order, intelligence agencies would have legal access to the content of those communications.
This is almost certainly how former national security adviser Michael Flynn was discovered to have discussed sanctions with Russian ambassador Sergey Kislyak, experts say. Kislyak was likely the target of a FISA order, and his call to Flynn was collected under that order.
Another, less well-understood surveillance authority comes from a Reagan-era executive order known as 12333, or “twelve triple-three.”
EO 12333 — much of which is redacted — governs U.S. intelligence-gathering overseas. It has come under fire from civil liberties advocates, who say it gives the intelligence community a blank check to regulate its own spying.
Under the order’s signals intelligence procedures, the attorney general can authorize searches of communications to or from an American for the purposes of targeting that American — again, as long as the attorney general determines that person is an agent of a foreign power.
And under some changes made to the executive order in the waning days of the Obama administration — which had been in the works for the better part of a year — the National Security Agency (NSA) now uploads the stream of intercepted intelligence directly to searchable repository that other intelligence agencies can sift through.
The NSA has always had the capability to share information gathered under 12333 with other agencies — like the FBI, for example — but now it does so automatically, without monitoring the content first.
Most surveillance experts believe that if — and that’s a big if — Trump’s communications were swept up by intelligence agencies, it was likely done under a FISA court order.
“If there was a FISA wiretap order on the Russian ambassador, I see absolutely no reason why a backdoor search on that collection wouldn’t be legal and total plausible,” said Nate Cardozo, a senior staff attorney with the Electronic Frontier Foundation. “I would believe that in a second.”
Conversely, he said, “It’s possible that if they were doing backdoor searches on collection that occurred in Russia [under 12333] but unless people were calling Russia directly from Trump Tower — which would be a story in and of itself — that’s not very plausible.”
“Backdoor surveillance” also was not what Trump was claiming, Cardozo noted. Trump’s tweets suggest that the collection of the data itself occurred within Trump Tower.
“The only thing that matches what Trump tweeted would have been a FISA wiretap of some variety — because he’s saying the collection occurred in Trump Tower, and if it occurred in Trump Tower, it can’t be 12333,” Cardozo said.
Trump has opened up a war on leakers within the intelligence community, blaming Obama-administration holdovers for a series of media reports linking campaign officials to Russian interests.
The New York Times reported in January that in the waning days of the Obama administration, some White House officials scrambled to spread information about possible contact between Trump associates and Russians across the government.
But most surveillance experts say that while it's possible Trump’s communications were the subject of a backdoor search, there's little public evidence to suggest that.
“In this world, there may be little difference between going out and collecting something new and searching through what we already have,” Sen. Ron Wyden (D-Ore.) said in remarks given last week. “The capacity to collect the most politically sensitive communications of American politicians, political activists, or journalists is apparent.”
Still, experts say it’s unlikely that the leaks about Trump’s campaign are the direct descendent of raw intelligence gathered under either FISA Section 702 or 12333.
Many of the major leaks — such as a New York Times report that agents had uncovered regular contact between Russian officials and some campaign members — all seem to be drawn from finished intelligence products, which would be an amalgamation of raw data from multiple streams. Experts say it would be nearly impossible to untangle what was drawn from which collection authority — if, indeed, either was used.
“In short ... Trump [has] advanced claims far more dramatic than anything the public evidence can support,” writes Cato senior fellow Julian Sanchez.
I just ate, I don’t want to hear about Obama’s back door
They get a warrant for a foreign entity in communication with a citizen for the sole purpose of listening to the citizen (which is against the law BTW).
It’s possible he was caught up in a “Whole Pipe “ warrant
Someone also knew and leaked Trump’s private telephone conversations with the President of Mexico and the PM of Australia. All targets of the FBI/CIA?
But, leaking them is a crime. Someone better be going to prison.
Right. And out of all the non US citizens in the entire world, they just happened to pick one who was talking to.....
Pure coincidence, I’m sure.
/sarc
Des anyone really believe any of these agencies are the least bit concerned about laws?
No evidence....despite all of the leaked newspaper articles saying Trump was tapped and evidence of FISA court cords.
President can’t order it...except that he can.
More obfuscation from the lamestream media.
Smells like bullshit in here.
The media knew this from the start, but wanted a narrative of ‘Look, there was a reason to investigate Trump!”.
I hate our lying, greedy media.
There are parts of agencies vulnerable to the law. And then there are other parts completely beyond the law.
Exactly. Another CYA narrative from the left.
No, they can’t do that because it is still a felony to record an American on the line.
Considering there was an election, they probably can’t accidentally backdoor servelance of a candidate for President.
They used the russian excuse to spy on Trump and his people
no
We still don’t know the extent of these U.S. spy agencies involvement in regards to spying on candidates, presidents in order to compromise and undermine American elections.
Begs the question, who do these spy agencies actually work for?
Whatever is the precise technical modality of the eavesdropping technique that was used to capture Trump’s private conversations and other data, that is not the main issue.
The main issue is the criminal leaking of the intelligence gathered in this manner to Trump’s political enemies, including the MSM.
There are criminal penalties for doing this.
The issue of what precise method was used, and whether that method is in 100% agreement with Trump’s tweets of Saturday 4 March 2017, is a red herring, although we can expect this and other red herrings to be constantly waved in our faces as this story unfolds.
It could also be that Schumer’s US Attorney, Preet Bharara, caused spying on Trump to see if he could trump up some charges like he did with Dinesh D’Sousa.
He was caught up in Obama’s Illegal ‘Wiretapping’.
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