Category Archive 'Bugging Trump Tower'

06 Mar 2017

Lots of Ways Trump Surveillance Could Have Happened Without Explicit Permission From Obama

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Cory Bennett explains that the Deep State could easily have have initiated surveillance on its own with no explicit permission from the White House. This would, of course, in no way preclude the use of the fruits of such surveillance by persons affiliated with Barack Obama against the Trump Administration and Trump appointees.

[T]here are still many ways in which information from Trump Tower phone calls could end up in the hands of intelligence agents or law enforcement officials — even without any knowledge on Obama’s part.

First, they may have come upon Trump Tower phone calls if a targeted foreign agent was on the other end of the line — this method comes from the Foreign Intelligence Surveillance Court, or FISA court. Or Trump Tower digital chatter might have shown up while authorities dug through the vast quantities of data hoovered up via more sweeping foreign surveillance programs.

Second, the FBI could also have asked for a so-called “pen register” or “trap and trace device,” which record only the parties involved in a phone call. These requests have a lower bar for approval.

While it’s unknown whether any of these scenarios occurred, it’s “very likely that the people in the Obama administration had access to the communication of senior Trump officials in the run-up to the election, because they have very, very broad authority,” said Cindy Cohn, executive director of the Electronic Frontier Foundation, which has advocated for revising surveillance laws.

And given the ongoing FBI-led investigation into potential ties between Trump’s associates and Russian officials, it’s plausible that law enforcement officials and intelligence agencies had an interest in — or simply came across — the communications in Trump Tower, specialists said. The government is also investigating an alleged Russian plot to use cyberattacks and disinformation to help Trump win.

According to news reports, the FBI last summer went to the FISA court — which approves clandestine spying efforts — asking for warrants to monitor four members of Trump’s team suspected of having improper exchanges with Russian officials. After being rebuffed, officials reportedly narrowed their request and got approval in October to monitor a computer server in Trump Tower to establish whether there were ties to Russian banks.

But such surveillance would be vastly different than the type of direct wiretapping Trump raised in his tweetstorm Saturday morning.

Nojeim explained that government investigators have two routes to obtaining a wiretap in the U.S. — one for criminal probes, one for intelligence gathering.

On the criminal side, the government must present a judge with probable cause that a wiretap-eligible offense has occurred — or is occurring — and that a wiretap will uncover the necessary evidence. Wiretap-eligible offenses are numerous, and they run the gamut from bribing witnesses to more opaque ones like “fraud by wire.”

The other route is through the FISA court, where the hurdles are trickier, specialists said, because the spying programs it oversees focus on foreign targets.

Officials must present the FISA court judge with probable cause that the person being wiretapped is an agent of a foreign power, like a spy, or an agent of a foreign terrorist organization. The government must also show that the phone line, email account or computer server in question is going to be used by that foreign target. If that target is an American citizen, the attorney general also has to OK the spying.

“There is a significant hurdle to wiretapping a person in the United States under either of these authorities,” Nojeim said.

Indeed, senior U.S. officials with knowledge of the government’s investigation into Russia’s alleged digital meddling with the U.S. election told The Washington Post there had been no wiretap of Trump.

But surveillance experts — and especially surveillance critics — were quick to note the myriad other routes officials have to get at the banter inside Trump Tower.

Through routine data collection programs authorized under Section 702 of the Foreign Intelligence Surveillance Act, the government gathers information from the internet backbone, which carries web browsing histories and a rapidly increasing amount of telephone traffic.

The government discards information that is plainly domestic and searches through the rest using only specific selectors — a phone number or email address, for instance. But Americans’ information that is incidentally collected and determined to contain some foreign intelligence value is fair game for review.

Cohn said such data on Americans could include communications that are to, from or about foreign targets the FISA court has already approved for surveillance. For example, if two Trump campaign officials were talking via email about a Moscow official under surveillance, that conversation might get flagged as relevant.

Trump’s anger over the potential surveillance of him and his campaign is only likely to increase people’s awareness of these programs, some of which are up for reauthorization at the end of 2017.

The White House reportedly supports a “clean” reauthorization with no revisions. But the heightened attention to the topic has already been used in Capitol Hill hearings to argue for an overhaul of the laws.

“I think that even if [Trump is] not exactly right about what happened here, the fact that he could tweet this … and we can’t tell exactly what happened, means that we need to have an honest conversation in this country about these authorities,” Cohn said.

06 Mar 2017

Disingenuous Denials

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Andrew McCarthy explains why Obama’s spokeman’s lawyerly denials are far from conclusive proof of innocence.

[R]eporting indicates that, prior to June 2016, the Obama Justice Department and FBI considered a criminal investigation of Trump associates, and perhaps Trump himself, based on concerns about connections to Russian financial institutions. Preliminary poking around indicated that there was nothing criminal involved. Rather than shut the case down, though, the Obama Justice Department converted it into a national-security investigation under the Foreign Intelligence Surveillance Act (FISA). FISA allows the government, if it gets court permission, to conduct electronic surveillance (which could include wiretapping, monitoring of e-mail, and the like) against those it alleges are “agents of a foreign power.” FISA applications and the evidence garnered from them are classified – i.e., we would not know about any of this unless someone had leaked classified information to the media, a felony.

In June, the Obama Justice Department submitted an application that apparently “named” Trump in addition to some of his associates. As I have stressed, it is unclear whether “named” in this context indicates that Trump himself was cited as a person the Justice Department was alleging was a Russian agent whom it wanted to surveil. It could instead mean that Trump’s name was merely mentioned in an application that sought to conduct surveillance on other alleged Russian agents. President Trump’s tweets on Saturday claimed that “President Obama . . . tapp[ed] my phones[,]” which makes it more likely that Trump was targeted for surveillance, rather than merely mentioned in the application.

In any event, the FISA court reportedly turned down the Obama Justice Department’s request, which is notable: The FISA court is notoriously solicitous of government requests to conduct national-security surveillance (although, as I’ve noted over the years, the claim by many that it is a rubber-stamp is overblown).

Not taking no for an answer, the Obama Justice Department evidently returned to the FISA court in October 2016, the critical final weeks of the presidential campaign. This time, the Justice Department submitted a narrowly tailored application that did not mention Trump. The court apparently granted it, authorizing surveillance of some Trump associates. It is unknown whether that surveillance is still underway, but the New York Times has identified – again, based on illegal leaks of classified information – at least three of its targets: Paul Manafort (the former Trump campaign chairman who was ousted in August), and two others whose connection to the Trump campaign was loose at best, Manafort’s former political-consulting business partner Roger Stone, and investor Carter Page. The Times report (from mid-January) includes a lot of heavy breathing about potential ties between the Trump campaign and Russia; but it ultimately concedes that the government’s FISA investigation may have nothing to do with Trump, the campaign, or alleged Russian efforts to interfere in the U.S. election by hacking e-mail accounts.

Trump’s tweets on Saturday prompted some interesting “denials” from the Obama camp. These can be summarized in the statement put out by Obama spokesman Kevin Lewis:

    A cardinal rule of the Obama Administration was that no White House official ever interfered with any independent investigation led by the Department of Justice. As part of that practice, neither President Obama nor any White House official ever ordered surveillance on any U.S. citizen. Any suggestion otherwise is simply false.

This seems disingenuous on several levels.

First, as Obama officials well know, under the FISA process, it is technically the FISA court that “orders” surveillance. And by statute, it is the Justice Department, not the White House, that represents the government in proceedings before the FISA court. So, the issue is not whether Obama or some member of his White House staff “ordered” surveillance of Trump and his associates. The issues are (a) whether the Obama Justice Department sought such surveillance authorization from the FISA court, and (b) whether, if the Justice Department did that, the White House was aware of or complicit in the decision to do so.

Read the whole thing.


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