EXPLAINED: How Trump Could Have Been SPIED & WIRETAPPED By Obama Administration - CIA SPYING & Tap

EXPLAINED: How Trump Could Have Been SPIED & WIRETAPPED By Obama Administration - CIA SPYING & Tap

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 Advisor Michael Flynn was discovered to have discussed sanctions with Russian ambassador Sergey Kislyac, experts say. Kislyac 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.

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