Stepping back for a moment from the extreme nature of Trump’s accusing President Obama of personally ordering Trump’s phone to be tapped, it looks like the surveillance itself might have taken place; and it could have taken place any number of ways.
by Julian Sanchez for Just Security, offers a very helpful historical and legal analysis of the situation.
After a March 4th Trump tweet storm (Tweet 1, Tweet 2, Tweet 3, Tweet 4), with varied accusations that Former President Obama was tapping his phone, Kevin Lewis (Obama’s spokesman) was quick to clarify:
“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 completely false.”
This seems to suggest that, if surveillance took place, that Trump himself, a U.S. citizen, was not the ordered target.
When a non-U.S. citizen is under surveillance, it could be as a result of FISA, provisions under the Patriot Act, or even the the NSA’s routine day to day surveillance powers, as outlined in Executive order 12333. (See the Washington Post’s in NSA-intercepted data, those not targeted far outnumber the foreigners who are.)
So, it would seem that, once they communicate with a suspected foreign party, any and all U.S. citizens easily fall under one of these three umbrellas.
Sanchez calls this “reverse targeting,” and explains it in the Just Security article:
“In either event, there’s nothing here to suggest either the direct involvement of President Obama nor any clear indication of a violation of the law. If, however, the primary purpose of the investigation was to build a criminal case against U.S. persons in the Trump camp, then the use of FISA authorities to gather information by naming foreign entities sounds like “reverse targeting”—tasking collection on a foreign target when your real interest is a U.S. person with whom they’re communicating. That would be, to use the technical term, highly shady even if not unlawful.“
Here is the complete analysis from the article (emphasis and bolding is my own):
Taking all these claims with the appropriate sodium chloride seasoning, what can we infer? First, contrary to what many on social media—and even a few reporters for reputable outlets—have asserted, the issuance of a FISA order does not imply that the FBI established probable cause to believe that any Trump associate was acting as an “agent of a foreign power” or engaged in criminal wrongdoing. That would be necessary only if the court had authorized direct electronic surveillance of a United States person, which (if we credit the BBC report) the FISC apparently declined to do.
Assuming the initial applications were indeed for full-blown electronic surveillance orders, then the fact that the FBI supposedly did name the Trump associates at first would suggest they may have thought they had such evidence, but one would expect the FISC to apply particularly exacting scrutiny to an application naming persons associated with an ongoing presidential campaign. An application targeting only foreign corporate entities—especially entities openly controlled or directed by the Russian government—would require no such showing, even if the FBI’s ultimate interest were in communications concerning those U.S. persons.
It’s worth noting here that, contra Trump’s claim on Twitter, none of the articles in question claim that phones were tapped. Indeed, it’s not even entirely clear that the order the FISC finally issued in October was a full-blown electronic surveillance warrant requiring a probable cause showing.
If the FBI was primarily interested in obtaining financial transaction records, corporate documents, and (depending on both the facts and the FISC’s interpretation of the FISA statute) perhaps even some stored e-mail communications, that information might well have been obtainable pursuant to a §215 “business records” order, which imposes only the much weaker requirement that the records sought be “relevant to an authorized investigation.” The BBC’s use of the word “intercept” to describe the investigators’ aim, as well as Mensch’s characterization of the order as a “warrant,” both suggest full-blown electronic surveillance, but reporters aren’t always particularly meticulous about their use of legal terms of art, and similarly, sources with indirect knowledge of an investigation may not be scrupulously exact about the distinction between an “order” and a “warrant.”
In either event, there’s nothing here to suggest either the direct involvement of President Obama nor any clear indication of a violation of the law. If, however, the primary purpose of the investigation was to build a criminal case against U.S. persons in the Trump camp, then the use of FISA authorities to gather information by naming foreign entities sounds like “reverse targeting”—tasking collection on a foreign target when your real interest is a U.S. person with whom they’re communicating. That would be, to use the technical term, highly shady even if not unlawful.
Thanks to the Patriot Act, however, FISA authorities may be used in investigations that have a “significant” foreign intelligence purpose, even if the “primary” purpose is criminal prosecution—a change from the prior standard imposed by the courts, which had required that foreign intelligence be the “primary” purpose of surveillance under the aegis of FISA, precisely to prevent authorities from evading the stricter requirements imposed by Title III, the statute that covers wiretapping for domestic criminal investigations.