President Donald Trump claims the Obama administration “tapped wires” in Trump Tower. Obama’s spokesperson claims Obama’s White House never surveilled any American, ever. Former NSA and ONI Director James Clapper says no warrant ever occurred to monitor Trump or his campaign. FBI Director Comey has insinuated through intermediaries that no warrant ever occurred. The New York Times reports multiple stories of “intercepted calls” of “Trump campaign members,” references “wiretapped data” shared with the “Obama White House,” and multiple stories report a transcript of the intercepted calls of former National Security Advisor Flynn. Could all of the above be true, or mostly true, at the same time?
There are 4 ways the government engages in surveillance: first, legally, through a warrant obtained from a federal judge; second, legally, through a FISA warrant obtained from a FISA judge; third, legally, without a warrant, by engaging in surveillance of ONLY foreign targets, in ONLY foreign territories, with special protocols and procedures to prevent recording or disseminating “incidental” intercepts of Americans, here or abroad; and fourth, illegally (see Ed Snowden; see Bill Binney; see Wikileaks CISA Vault 7 reports this week).
It is important to understand foreign surveillance takes place all the time without a warrant — see war zones, drone bombings, Merkel, etc. A key factor is the Fourth Amendment does not apply outside the borders of the United States to non-citizens. That is how Obama could engage in surveillance of the kind necessary to engage in drone bombing. (It also makes his statements about “never” engaging in surveillance of Americans incredulous, given his use of drone bombing even American citizens overseas. Is Obama really trying to say he accidentally killed an American citizen overseas? Presumably, Obama had a FISA warrant for that, which he also seems to deny ever getting for any American by his peculiar statement.)
The key is such warrant-less surveillance of foreigners in foreign lands is supposed to never intercept Americans’ calls, and if it “incidentally” does, then it is supposed to delete the information, and prevent its dissemination, not transcribe it, and not share it. Equally important, this power of warrant-less surveillance of non-Americans outside the territorial United States still requires those two facts be true to make it legal: that is surveilling non-Americans, and that the surveillance is outside the territorial United States. Once either of those facts is no longer true, either a FISA or regular federal court warrant is required if the means of surveillance is considered “invasive” of a Constitutionally protective privacy area under the Supreme Court’s Kyllo decision (holding a mere thermal search of a house conducted entirely externally violated Fourth Amendment right to be secure in one’s private space.)
Comey, Clapper and Obama have all appeared to rule out any warrant-based intercepts, either by the FBI or by FISA. This leaves only two options: illegal intercepts, or illegal sharing of incidental intercepts of Americans on calls recording foreigners. Increasingly, the latter appears the most apparent answer: illegal sharing of incidental intercepts of Americans on warrantless recordings of foreigners in foreign territories.
One commonly repeated misunderstanding in the media is that an American can be lawfully recorded whenever they interact with a foreign person. That is false. Even a FISA approved warrant prohibits its use on Americans except under very constricted circumstances. Another falsehood reported in the media — as reported in Politico and elsewhere — is that FISA allows for recording an American whenever the American merely has financial dealings with foreigners. Nope. Instead, FISA, as it must, to be Constitutional under the Fourth Amendment, requires a court find probable cause of a particular war-like crime to surveil an American invasively. If American’s calls are intercepted, then special quarantine procedures must be invoked, screening out the data, redacting the identity of the American speaker and purge/deletion of the data. Published reports, however, point to the opposite: searching, saving, and sharing the intercepts of Americans with those unauthorized under the law to have it.
As Snowden revealed after Clapper apparently lied to Congress (after which, Obama promoted Clapper), one of the keys to the misuse and abuse of foreign espionage powers of the government was misidentifying Americans as “non-US persons” when they have an off-shore proxy server, and pretending they are wiretapping the “offshore server” of a “foreign interest” when they are actually tapping the actual American-located data of an American. FISA law prohibits this. The media once knew this, before their anti-Trump obsessions.
This all relates to the possible server story circulating in the press: a computer in Trump Tower receiving “pings” from a Russian bank computer. As tech observers noted and The New York Times own story conceded, these could easily be the kind of pings that happen everyday on everyone’s computer from someone else looking to spam you. Did someone in the Obama administration utilize this criticized process of pretending, a process that converted the Trump Tower computer into a “foreign” computer of a “foreign” entity? Did that lead to further taps under the guise foreigners were being tapped, when it was actually Americans?
There are a lot of “wires” these days that can be “tapped,” wires that store, preserve, and control access to the most private and privileged information of a person. The reason this is illegal on an American or on American soil, without a judicial warrant, is because the Fourth Amendment protects Americans from their government spying on them, through whatever means of surveillance, be it smart phones, email reading, smart televisions, or phone intercepts. Only foreigners in foreign lands are unprotected. This illicit practice of the NSA spying on Americans was rejected by the federal courts repeatedly, early in Obama’s first term, when Obama tried to hide behind the “state secrets” privilege to mask his administration’s ongoing unlawful activities (the same bad spying activities he promised to reverse in his 2008 campaign, criticizing the George W. Bush administration heavily for its reported illegal surveillance programs on Americans.)
Worse yet for any practitioners of this unlawful surveillance or use of surveillance, it appears all this unlawful surveillance turned up bumpkis against Trump. As is being reported by Clapper, and others, no evidence of any collusion of any kind was found against Trump or his campaign with Russian operatives. Indeed, it remains far from clear Russia hacked anybody, as the DNC refused to let the FBI look at its computers after the hack, and Podesta was phished by a bogus email rather than an actual hack. Equally, this week’s Wikileaks report documented how anyone with access to the CIA tools, such as a program called Umbrage, could mimic a Russian hack attack and cover their tracks in that matter, and, according to wikileaks, many of these tools were lost to non-CIA actors due to the CIA’s own carelessness.
DeepStateGate may make Watergate look like child’s play, with surprising victims (Trump tapping) and unsuspecting victors (Snowden’s vindication). In this case, “the tapes” may be proof of something entirely different.
This is an opinion piece. The views expressed in this article are those of just the author.