By Elliot D. Cohen, Ph.D.
Recently, President Trump accused former President Barrack Obama of wire tapping Trump Tower. He tweeted, “Terrible! Just found out that Obama had my “wires tapped” in Trump Tower just before the victory. Nothing found. This is McCarthyism!” And he further tweeted, “How low has President Obama gone to tapp my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!” And also, “Is it legal for a sitting President to be “wire tapping” a race for president prior to an election? Turned down by court earlier. A NEW LOW!” The Trump administration then called for an investigation into the claimed “wire tapp [sic]” without providing any evidence to justify such an investigation. Unfortunately, the corporate, mainstream media has taken to this claim like a dog thrown a sliver of red meat. As a result, the really important issues have been buried beneath a smokescreen of “alternative facts.”
Most of this media coverage has focused on the serious but unsubstantiated nature of Trump’s claim. For example, Chris Matthews of MSNBC stressed that Trump was accusing Obama of a felony without evidence. And subsequent reports have stressed the fact that the former Director of National Intelligence, James Clapper, as well as the current Director of the FBI, James Comey, have denied that there have been any Foreign Intelligence Surveillance (FIS) warrants issued by the FIS court to the FBI to tap Trump’s phones. However, this focus has obscured the nature of electronic surveillance, and, thereby, given credence to Trump’s apparent naivety about how electronic surveillance actually works. In this intercourse of the proverbial blind leading the blind, exploration of the potential connections between the Trump team’s own possible clandestine communications with Russian operatives during the 2016 presidential election have been sidelined. Paradoxically, notwithstanding his baseless accusations of having been unlawfully wiretapped, he might well have been party to a legal but warrantless form of foreign intelligence gathering.
As was revealed in the aftermath of the Snowden disclosures (and even before that by the AT&T whistleblower, Mark Klein), electronic communications involving at least one individual “reasonably believed” to be outside the U.S. have, since as early as 2003, been systematically copied, analyzed and stored by the National Security Agency (NSA) as they pass through the facilities of electronic communication service providers (such as AT&T and Comcast) on route to their destinations. In the past decade, this system of mass surveillance has grown exponentially in its capacity to analyze and store increasingly larger amounts of data at accelerated speeds. This massive surveillance system has the power to construct “digital footprints” or profiles of anyone it targets. It can even capture and analyze an “upstream” data flow in real time as well as store it in searchable databases for later retrieval.
Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008, the electronic communications of non-U.S. persons, who reside outside the U.S. can be acquired without a search warrant issued by the FIS Court. According to provision 702(a), “Notwithstanding any other provision of law… the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” As such, insofar as Trump and/or his associates were communicating with a Russian person or organization located outside the U.S., which was itself a target of foreign intelligence gathering, the communications of Trump and/or his associates would also have been lawfully acquired.
However, if Trump himself were exclusively the target, a FISA warrant would have needed to be issued by the FIS Court in order for the government to lawfully acquire the communication in question. Pursuant to the Fourth Amendment, the FBI would then have needed to show probable cause. While there have been a few unconfirmed reports of such FISA warrants having been applied for by the FBI and some of these actually granted, such reports contradict the statements made by Comey and Clapper denying that any warrants have been issued. If such warrants were, indeed, issued by the Court (whose rulings are almost always highy secretive and unpublished), then the evidence gleaned from previous intelligence would have had to show probable cause. This would, in turn, give the FBI the legal authority to look into the target’s other computerized activities such as credit card purchases, banking activities, internet searches, and the contents as well as metadata of wholly domestic phone conversations. So, what other intelligence could have been legally obtained without such a warrant?
Suppose that Trump’s server at Trump Tower (or elsewhere) was communicating with a foreign power or agent of a foreign power thought to be involved in espionage, say a Russian Bank such as Alfa Bank with known ties to the Kremlin, a credible scenario reported earlier by Slate. In this case, the NSA (not the FBI) would acquire the Trump communications when it targeted Alfa Bank, which might conceivably tell the feds a great deal about any possible quid pro quo going on between Team Trump and the Kremlin. Yet this warrantless acquisition would still be legal just as long as the following provisions held true:
Consistent with the Fourth Amendment, pursuant to Section 702(b) of the 2008 FISA Amendments Act, the acquisition could not intentionally target: (1) a person located in the United States; (2) a person reasonably believed to be located outside the United States merely for purposes of targeting someone in the United States; (3) a United States person reasonably believed to be located outside the United States; or (4) a person who is a sender or recipient of a wholly domestic communication.
In the case of Alfa Bank, provision 1 would be satisfied since Alfa Bank is located in Russia. According to provision 2, if the government targeted Alfa Bank just in order to target Trump, then it would violate the FISA Amendments Act. However, if the government were tracking the communications of Alfa Bank, even before it communicated with Trump Tower, then it would be hard to see how this provision could have been violated. Provision 3 would also be satisfied inasmuch as Alfa Bank is not a United States Person; and provision 4 would be satisfied since the acquisition would not be between persons located in the United States.
Ironically, if the Trump team really did communicate electronically with Alfa Bank or some other Russian agent who was an NSA target of intelligence gathering, then, because Trump has called for an investigation of whether Obama ordered a wire tap on Trump Tower, he has also made his own communications the target of a criminal investigation. In such a case, he would be caught with his proverbial fingers in the cookie jar.
According to Section 702 (g)(2)(A)(v) of the 2008 FISA Amendments Act, “a significant purpose” of the acquisition must be to obtain foreign intelligence, which means that there could be other purposes for conducting warrantless surveillance of a foreign power or its agents. In particular, a further purpose could be to gather information regarding the commission of a crime. This means that the evidence of the commission of a crime acquired in the course of electronic foreign surveillance would be admissible for purposes of criminal prosecution. So, if Trump and/or his associates colluded with the Russians in interfering with the 2016 presidential election, then the evidence acquired through surveillance of the Russian target would be admissible in prosecuting him and/or his associates for a crime against the United States, namely treason as defined in Article 3, Section 3 of the United States Constitution—“adhering to their enemies, giving them aid and comfort.”
So, the corporate media may best do its job as “Fourth Estate” by keeping the focus on the investigation into possible collusion between Trump and the Russians, rather than on whether Obama wire tapped Trump Tower. Indeed, it would not be remarkable if the communications of Trump and/or his associates showed up in a perfectly lawful albeit warrantless foreign intelligence acquisition. And, in stark contrast to the trumped-up charge that Obama bugged Trump’s phones, this would truly be breaking news!