The phone lines of Donald Trump might have been put under surveillance through use of a workaround in the legal process, according to The Hill.
Now-President Trump claimed in a series of Twitter messages that in the run up to November's presidential election his phones at his New York offices in Trump Tower were tapped by the Obama administration. While the claim has not yet been substantiated, the report in The Hill explains that intelligence agencies might have been listening in – even without a warrant from a federal court.
So-called "backdoor searches" are permitted of communications involving non-U.S. citizens. That person under surveillance may be speaking with an American citizen who is then ensnared as well – without a warrant.
The hypothesis laid out by The Hill posits that if Trump or members of his team were speaking with a non-U.S. citizen who was being investigated for spying during the election process, then it might be the case that those conversations were recorded and disseminated throughout the intelligence community.
While the practice is controversial, with privacy advocates arguing a warrant should be required, the intelligence agency's operations are legal and widespread – and likely is the basis for President Trump's claim that his predecessor “wiretapped” Trump Tower.
But, as The Hill explained, ever since reforms in the 1970s following the Watergate scandal, the president does not have the legal authority to directly order a wiretap.
"There are just two authorities for wiretapping an American citizen – a Title III criminal warrant or a legal order from a clandestine intelligence court," The Hill explained.
Regardless, there are still two methods by which intelligence agencies currently could eavesdrop – without a warrant – on the communications of a citizen, including Donald Trump. The Foreign Intelligence Surveillance Act (FISA) permits spying on foreigners within U.S. borders. While it is also permitted to spy on a U.S. citizen under this ruling, Justice Department officials would need to demonstrate to the court that the subject of the surveillance was acting as an agent of a foreign entity.
While James Clapper, former director of national intelligence, testified this past weekend that there was not a FISA warrant in place on Trump or his team, other reports hint at the possibility that courts did allow the FBI to keep tabs on two Russian banks. So, should any of Trumps partners have had dealings with the targets of the FBI's investigation, those details would have been gathered legally and shared among the intelligence agencies.
Another less common legal proceeding, known as 12333, or “twelve triple-three,” manages U.S. intelligence-gathering offshore. It authorizes the attorney general to permit 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," according to The Hill.
Further, the National Security Agency can upload that intercepted intelligence to an online repository through which other intel agencies can search.
The consensus among surveillance experts is that the most likely explanation for Trump's claim is that his communications were ensnared by the intelligence agencies working legally via the use of a FISA court order.
“If there was a FISA wiretap order on the Russian ambassador, I see absolutely no reason why a backdoor search on that collection wouldn't be legal and totally plausible,” Nate Cardozo, a senior staff attorney with the Electronic Frontier Foundation, told The Hill. “I would believe that in a second.
