How Wiretaps Actually Work (washingtonpost.com)

David Kris, assistant attorney general for national security from 2009 to 2011, has responded to the recent accusations made by president Donald Trump. On Saturday, Trump accused former president Obama of orchestrating a "Nixon/Watergate" plot to tap the phones at his Trump Tower headquarters in the run-up to last fall's election. He writes in an opinion piece for The Washington Post: First, the U.S. government needs probable cause, signatures from government officials and advance approval from a federal court before engaging in wiretapping in the United States. There are some narrow exceptions, for things such as short-term emergencies, which are then reviewed by a judge promptly after the fact. This is not something that the president simply orders. Under the law governing foreign intelligence wiretaps, the government has to show probable cause that a "facility" is being used or about to be used by a "foreign power" -- e.g., a foreign government or an international terrorist group -- or by an "agent of a foreign power." A facility is something like a telephone number or an email address. Second, there is no requirement that the facility being wiretapped be owned, leased or listed in the name of the person who is committing the offense or is the agent of a foreign power. [...] Third, government officials, including the president, don't normally speak publicly about wiretaps. Indeed, it is in some cases a federal crime to disclose a wiretap without authorization, including not only the information obtained from the wiretap, but also the mere existence of a wiretap with an intent to obstruct it. With respect to intelligence wiretaps, there is an additional issue: They are always classified, and disclosure of classified information is also generally a crime. The president enjoys authority over classified information, of course, but at a minimum it would be highly irregular to disclose an intelligence wiretap via Twitter.

Comments

Newsflash

[93 Escort Wagon]

Trump shoots off mouth about topic with no justification in fact. News at 11.

#IStandWithSweden

Re:Newsflash

[Anonymous Coward]

Newsflash - the intelligence agencies of the United States have a documented history of breaking the law.

Any claims based on the assertion that they behave lawfully is flawed and not to be considered credible.

Re:Newsflash

[known_coward_69]

every weekend he flies off to florida to golf and meet with business and foreign leaders right after he shoots off some idiotic tweet that the media eats up all weekend long to take away from what he is actually doing

total justification

Re:Newsflash

[hey!]

Trump shoots off mouth about topic with no justification in fact. News at 11.

Which is exactly the point. When he doesn't like the way the news is talking about he changes it by saying something outrageous.

Donald Trump isn't crazy. And he isn't really careless -- not about the things that matter to him. He's manipulative. His supporters understand this, and don't mind when he is factually wrong because they understand he is a bullshit artist. They just think he's their bullshit artist.

The difference between bullshit and a conventional lie is that the bullshitter doesn't lie to deceive, he lies to produce an effect. Bullshitting is often safer and more effective than lying because a lie disproven is neutralized, but disproving bullshit is a waste of time because nobody is meant to believe it.

Re: Newsflash

[Anonymous Coward]

Turns out trump is the fucking loser we all said he was all along and the first month of presidency is worse than any reasonable person could have speculated.

Trump has accused the former president of a crime that if he was still president would have resulted in an impeachment and likely jail.

From all accounts Trump's accusation are a blatant and flat out lie backed by the power of the president of the united states.

Why should his punishment be less than Obama's would have been if it was true? The presidency is not a toy for Trump to play with the masses with. Impeachment is the only remedy to remove a president that is failing to do his job in a minimally credible manner. He is failing at that. This is not really political. The united states president must have credibility, or he can't do his job. He doesn't have it. He is a lying sack of crap.

Re: Newsflash

[Curunir_wolf]

We're gonna win so much, we're gonna get tired of winning!

Re:Newsflash

[hey!]

He's manipulative. His supporters understand this

Oh, if only they did.

Oh, but they do. They just don't believe he'd do it to them.

Re:Newsflash

[schitso]

Hashtags on Slashdot? Truly these are dark days.

Re:Newsflash

[skam240]

"The same kind of bullshit Obama used to spew, and the left understood he was "lying" in order to "progress" the narrative. "

Please, give me an example of Obama doing this. Something on par with claiming the prior president had bugged his phones while possessing zero evidence to support the claim please.

Highly irregular

[gnick]

The president enjoys authority over classified information, of course, but at a minimum it would be highly irregular to disclose an intelligence wiretap via Twitter.

A General Hayden explained on the Late Show the other night that the president can tweet whatever he damned well pleases - Since he's the ultimate classification authority, information just BECOMES unclassified BY being tweeted. Of course this is irregular - We've never had a president who used Twitter (or any social media) the way DJT does. This is just an irregular presidency all together.

That's not a technical explanation

[Anonymous Coward]

All this person is explaining is how it should normally function when done legally. It being done legally is not and has not been the problem.

Now I don't believe Obama went and wiretapped Donald Trump. But to claim that this is "how wiretaps work" is nothing but disinformation using the Trump accusations as a veil to pretend that nothing illegal was done to any other americans. Like the ones actually being illegally wiretapped.

Makes me think the entire story breitbart copied was planted for a reason...

Re:That's not a technical explanation

[hey!]

Sure, it's physically possible to wiretap someone illegally. Lots of men do it with their wives and girlfriends: install a rogue app on their phone, or listening devices in their apartments. The fact that they have physical access to the places is key.

The difference is that the Executive Branch is a bureaucracy. The President doesn't have physical access to his target, he has to order the bureaucracy to do it, and that leaves a paper trail. Even he ordered everything to be done without writing anything down, the order will go down the chain of the command from political appointees down to civil servants who don't have the personal loyalty to the president to be trusted to do something illegal. I have to believe that official CIA covert ops aren't run that badly. The very fact that you need people rash enough to do those kinds of things means you can't trust them to be cautious, even if they're personally loyal.

This is why Nixon turned to his political flunkies, who, to coin a phrase, "knew some guys". The results were predictably misbegotten. The "Plumbers" group broke into the office of whistleblower Daniel Ellsberg's psychiatrist looking for dirt. The failed to locate Ellsberg's file because they themselves threw it on the floor without looking at it. Then there was their more successful wiretapping of the DNC at the Watergate Complex. Of the two devices they planted only one worked and that soon broke down, forcing them to attempt a second burglary. That second burglary was badly bungled and five "plumbers" were arrested, eventually leading to the downfall of the Nixon presidency.

People are right to fear the surveillance might of the US government. But using it for spying on political opponents was too risky to be feasible even in Nixon's day.

No, what we have to fear is routine data collection, bending or stretching the law and done under the color of legitimate national security purposes. Such datasets can be illegally accessed by a single rogue actor with relatively little risk, and that can be used for political spying.

The truth of the accusation...

[reginaldo]

As long as Trump's statements build a platform to justify his future actions, whether true or not, he is happy. It doesn't matter if illegal immigrants are actually criminals or not, it only matters that saying it provides Trump with the justification of building a gigantic wall. It doesn't matter whether Obama wiretapped Trump Tower, it only matters that saying it provides Trump with the ability to deflect conversation about Russian ties. This is how an authoritarian government works. They care less about the truth, and more about justifying their actions with a painted visage of half-truths and lies.

Re:The truth of the accusation...

[Mashiki]

The truth is "left" and "right" were references to where certain parties sat in a literal assembly room over a century ago. The democrats and republicans are both working towards a fascist, totalitarian state hand in hand with the private industries they work for, and we're all too busy arguing over whether or not abortions should be done at a clinic or a back-alley to notice we're walking straight to serfdom either way.

Not quite, but close.

Why do you think Trump was elected. He wasn't part of the establishment, why do you think so many republicans are attacking him along with democrats? This is about "us or them" but your axis is wrong, it's libertarian vs authoritarian. Which is why you've seen so many people quit the democrat party since Clinton received the nomination. Why the moderates in the middle of the political class have grown. Why even life-long democrats are willing to vote for Trump. This isn't just US politics either, it's happening in the UK. It's happening in France, Germany, Netherlands, Canada. 90% of this entire thing is "elite insiders" vs the public and they're willing to use anything from identity politics(you're a racist/sexist/homophobe/misogynist/nazi/etc) to try and keep a hold of power. Hell in Canada, there it's only taken 15 months and there's already a growing backlash against the establishment. 80% of the public don't trust the government in power(Trudeaus Liberals), the last time it was that high? 1998 when Chretien's Liberals were in power.

Re:The truth of the accusation...

[Mab_Mass]

Fox is at least open with their bias

Hence their slogan "Fair and Balanced."

Turned and twisted

[cwebb1977]

So you're trying to tell us even if Obama illegally wiretapped Trump, Trump is not allowed to tell anyone. Uhm, yeah...

Re:Highly irregular

[Nidi62]

The president enjoys authority over classified information, of course, but at a minimum it would be highly irregular to disclose an intelligence wiretap via Twitter.

A General Hayden explained on the Late Show the other night that the president can tweet whatever he damned well pleases

No, he can't. When the President tweets his every thought, any tweet can literally cost taxpayer money or affect domestic or foreign policy. Trump tweets these claims about wiretapping, and now Congress has to do an investigation. If he tweets some about say, Turkey, that the Turkish government doesn't like, they could expel diplomats or sever diplomatic ties. If he tweets something about North Korea that pisses them off, they might fire off a missile or 2, or shell a South Korean island. Hell, his tweets have actually affected the stock prices of companies when he tweets negative things about them (and has even blamed companies for problems caused by the travel ban in his tweets). As President every word you say, every statement you make, has the weight of the US government and military behind it. You damn well can't just say whatever you want, because at best it can cost people money. Worst case, it can cost people their lives.

Not so.

[Bartles]

Chapter 36 of Title 50 of the US Code *War and National Defense", Subchapter 1, Section 1802

(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801(h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

Re:Not so.

[Jason Levine]

You bolded the first part, but the second part is important too:

(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801(h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

This means that, even if Obama did have Trump wiretapped, it was likely due to connections to a foreign power (likely Russia). So "Obama wiretapped me" is another way of saying "I was communicating with Russia."

Of course, all of these allegations are built literally from Conspiracy ramblings. Trump got his information from Breitbart who got their information from Mark Levin, a conspiracy theorist who thinks Obama's heading a silent coup. (Yes, he's so insidious that he turned over power to Trump while moving his coup forward.) We have a President who - with access to the FBI, CIA, NSA, etc - decides that a right-wing conspiracy theorist is his best source.

And just to add to the head-shakingly-sad nature of this, some Republicans in Congress want to open investigations on Obama based solely off of Trump's tweets (with Trump's staff specifically saying he doesn't need to provide any evidence that this is true). Yet, with all of the Russia connections coming out, they are dragging their feet as to whether a Trump-Russia investigation is needed. Party before Country!

Re:Not so.

[fahrbot-bot]

Chapter 36 of Title 50 of the US Code *War and National Defense", Subchapter 1, Section 1802

(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that— (A) the electronic surveillance is solely directed at— (i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801(a)(1), (2), or (3) of this title; or (ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title; (B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and (C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801(h) of this title; and if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

I'm not sure what you're trying to show. The text you included gives the President the authority to request surveillance, w/o a court order, on foreign communications - either (A:i) entirely between foreign powers or (A:ii) if under open/exclusive control of a foreign power. It specifically prohibits surveillance of US persons in (B). In all situations, cases must be reviewed in (C). No where does it authorize surveillance on US persons w/o a warrant.

Re:Highly irregular

[PopeRatzo]

A General Hayden explained on the Late Show the other night that the president can tweet whatever he damned well pleases - Since he's the ultimate classification authority, information just BECOMES unclassified BY being tweeted.

Even if something becomes unclassified because the president tweeted it doesn't mean it becomes TRUE because the president tweeted it.

weasel words

[ooloorie]

This is not something that the president simply orders.

Obama also didn't "order" the IRS to audit conservative organizations either. Crooks in authority often don't "order" things, they imply things, or simply create a climate and reward systems where things they want to happen happen. So, those are weasel words, attempting to obfuscate the obvious fact that the president has the power to make such things happen, tolerate them, or stop them.

I think it's pretty clear that the Obama justice department submitted applications to FISA courts for surveillance of Trump associates and that these were turned down multiple times until it eventually approved a narrow version. These applications were based on the notion that people associated with Trump might have illegal financial ties to Russia, charges that keep getting repeated to this day by Democrats, so it seems outright bizarre that Democrats would now deny any attempt at investigating those ties.

So, of course, the Obama DOJ conducted wiretapping and surveillance of Trump tower and attempted to involve Trump in it, and Obama either encouraged this or tolerated it or didn't know about it. Any of those possibilities make Obama responsible for it. That is, the wiretapping of the presidential candidate of an opposing party is such a politically important issue that Obama is personally responsible even if he was out golfing and only heard about it on TV afterwards.

The president doesn't understand his own job

[Anonymous Coward]

Why has nobody else mentioned that the mere existence of this story points to one undeniable fact: Donald Trump, the president of the United States of America, does not know what the powers and limitations are for the office of president.

It was already pretty probable based on his public promises and problems with executive orders. This is just one more confirmation that he thinks Barack Obama had the powers of a king and that now he has been appointed king and that the only limitation is how far he's willing to take things.

Re:Highly irregular

[GWXerxes]

How does that mean he can't tweet "whatever he wants." The point was there's no higher power stopping from from speaking. If he wants to speak about classified information than he can, and literally nobody can stop him. People just don't seem to like the fact that a loudmouth president has a direct line to the public

Misleading Title

[nehumanuscrede]

Allow me to correct it:

How Wiretaps Are Supposed To Work If Everyone Follows the Laws

Many folks know this already, but the laws don't really apply to people operating at that level. They're supposed to. We're assured they do, but they don't.
They do what they want, then make up some bullshit story to justify their actions later on if they get caught and end up with a wrist slap at worst. It's RARE to see people at that level going to jail or even being held accountable for their actions.

I sincerely hope Wikileaks releases the most god-awful embarrassing revelations about what the Intelligence Community is doing under the guise of " National Security ". While most on /. already suspect the three letter agencies have their fingers in just about everything, it's nice to see it show up in the spotlight from time to time as a reminder that the World isn't nearly as nice a place as it seems to be.

Now, turn off your hatred for all things Trump for a moment and entertain the possibility that there might be some truth behind Trump's wiretapping claims. The ability to spy on everyone means our future leadership can be hand-picked because any possible opposition can be singled out and utterly destroyed simply by putting their entire life under a microscope and " leaking " information that would be useful to destroy their reputation. If the Hillary camp is to be believed, releasing damaging information at the right time is quite effective isn't it ?

If that doesn't work, mis-information is equally devastating in this day and age. We don't need proof, just make some shit up and, if it's juicy enough, the media jumps all over it like a Republican on a Tax Cut ( or to be fair, like a Democrat on a Tax Increase ). Retractions later on are irrelevant if the time window is narrow enough. ( Like an election ) The damage is already done.

Taking that a step further: Would you like the Trump ( or any ) administration to have the ability to hand-pick their successor by utilizing tools / agencies designed to Spy on foreign powers ? Tools that are unavailable to any potential opposition which puts them at a tremendous disadvantage. Better yet, would you like the CIA, NSA, $TLA to pick your leadership FOR you ?

I doubt it.

Re:Highly irregular

[Nidi62]

How does that mean he can't tweet "whatever he wants." The point was there's no higher power stopping from from speaking.

The higher power is his duty to faithfully represent the United States and guide its government. He's not tweeting things like "I hate Taco Tuesday", thereby preventing all Tex-Mex restaurants in the US from offering cheap tacos on Tuesday. He has directly tweeted accusations that the prior administration broke federal law and did something so unethical that Congress is required to investigate and, if true (which so far there is zero evidence of it being true), would shake the very foundation of American government-especially considering the hostile and adversarial political climate currently in the US. He has used tweets to lay blame for the effects of ill-conceived and horribly executed Executive orders not on his orders but on companies who were in no way involved (ie. the travel ban). He tweeted about cancelling the new Air Force One contract and Boeing's stock dropped immediately (in fairness it did recover once people realized he wouldn't actually do it). Presidents have Press Secretaries, speechwriters, and communications staffers precisely because his words carry so much weight that they have to be carefully considered, otherwise you risk very serious fallout or collateral damage. He's not a reality TV host anymore, or someone who just licenses his name to everything from belts to buildings: he represents 320 million people and the largest military spender in the world by far. Being an unfiltered loudmouth is the last thing you want to be in that situation.

Re:Highly irregular

[dfghjk]

"If he wants to speak about classified information than he can, and literally nobody can stop him."

That's true of everyone, not just the president. Doesn't mean there won't be consequences, that's how the law works.

Of course, with the president there can be no prosecution while in office but he can be prosecuted after he leaves office. Furthermore, he can be removed from office through impeachment and disclosing "whatever he wants" could constitute an impeachable offense. You are simply wrong on this, the constitution has more authority than the president and he can't simply do what he wants.

Presidents always have a direct line to public, twitter hasn't changed that and people don't dislike it. People don't like trump for other reasons.

Re:Highly irregular

[dfghjk]

It very well may be illegal. Presidents are not above the law although some, including trump, believe they are and have said so.

"Not if the president does it."

Trump has said this and it's very, very wrong. Nixon said it too. He was wrong as well and paid the price for it.

There are severe problems in Sweden

[Anonymous Coward]

I don't care where you fall on the political spectrum, it needs to be admitted that there are some serious problems affecting Sweden right now.

For example, just look at this list of recent grenade attacks in Sweden.

Sweden's population is only about 10 million people yet they've been suffering from grenade attacks almost every other week for several years now.

That's extraordinarily abnormal, especially for what was once one of the most advanced and peaceful nations on Earth.

It has been particularly bad in Malmö, a city where over 40% of the population are foreigners or not descended from traditional Swedes.

Regardless of your feelings for President Trump, it cannot be denied that he is right about the major problems affecting Sweden today.

Failed immigration policies have resulted in far too many violent criminals from some of the worst areas in the world ending up in Sweden, and they are quickly destroying what was once one of the top nations. The United States should learn a lesson from Sweden.

Follow the Russians...

[__aaclcg7560]

From what I've read in the news, the wiretapping wasn't aimed at Trump but at a Russian server operating out of Trump Tower. But, yeah, let's blame Obama for that one too.

http://www.slate.com/articles/news_and_politics/cover_story/2016/10/was_a_server_registered_to_the_trump_organization_communicating_with_russia.html

Re:Highly irregular

[ImprovOmega]

The president has declassification authority. It is literally impossible for the president to be prosecuted for leaking classified information since he can decide to declassify anything he damn well pleases. Now Congress can be a check on this by impeaching and convicting him because what he declassified had horrible consequences, but he can declassify it and there's no law to prevent it. In fact the law very specifically allows him to declassify it as part of his duties as president.

Re:Trump doesn't care

[Nidi62]

You damn well can't just say whatever you want, because at best it can cost people money. Worst case, it can cost people their lives.

You say that as if you think Trump actually gives a shit about costing other people money or their lives. I think Trump loves the fact that he can move markets with nothing more than a fact free tweet from the toilet.

That's the point I am trying to make. Trump either doesn't know or doesn't care. And the problem is a President has to know and has to care.

Re:Highly irregular

[ripvlan]

While correct - there is a nuance to the "nobody can stop him." Congress can - via impeachment proceedings. If he starts disclosing "real" Classified information to the point that Congress feels he's a danger to the country - then Congress has a tool to "stop" him. There are also smaller hammers such as Censure.

The President is not the all powerful ruler that some think he is -- rather one branch of government balanced by the others.

Wikipedia has this wonderful quote in the Impeachment article: "Benjamin Franklin noted that, historically, the removal of "obnoxious" chief executives had been accomplished by assassination. Franklin suggested that a proceduralized mechanism for removal—impeachment—would be preferable"

Re:And further

[skam240]

Of course your description is not what happened at all. Here's what actually happened.

PRESS: "Wiretaps were used to investigate Trump's possible Russian involvment."

TRUMP: "I was personally wire tapped and Obama ordered it!"

PRESS: "Donald Trump Unhinged! Claims he was Spied On. Unfounded!!!!"

Do you see the huge glaring gap there between the first and second lines? That's the reason for the third line.

There is currently zero evidence for Trump's claim and the president making such a claim about a prior president without evidence is indeed unhinged.

Re:And further

[schnell]

PRESS: "Donald Trump was wiretapped in an ongoing investigation into ties to Russia" ... It is actually funny seeing the same NYT "reporter" reporting "Donald Trump was Wiretapped" and "Donald Trump wasn't wiretapped".

Yeah, I'm pretty sure it wasn't the New York Times that claimed Trump was being wiretapped, let alone the same reporter. In fact, I'm pretty darned sure it wasn't the "liberal press" that made the claim at all. The whole point of the incredulity over this from the "mainstream press" is that the original claim was dubiously sourced from the beginning and based on nothing more than "I bet this probably happened." Lack of critical thinking skills is disappointing in individuals like you or me, but genuinely dangerous in the hands of powerful people.

Liberals can quote both, and believe both simultaneously

I believe the cognitive dissonance may be going on somewhere else here. Or maybe rather the same affinity or lack thereof for fact checking.

Fake news

[rsilvergun]

but you're still right. Obama didn't order the IRS to audit conservative organizations. Period. Full Stop. No quotes around order. The IRS did it themselves because there were so many right wing political organizations filing as charities that they were low hanging fruit for agents looking to bump their enforcement numbers up. Where they being profiled? Yeah. But they were being profiled by the IRS, not Obama and because they were up to no good and everybody knew it. Sad thing is they cried a little and now they get away with it all day long.

NYT changed story

[Anonymous Coward]

story about how the NYT changed their headline to remove the word Wiretap.

In the story is the ORIGINAL story as NYT printed it. You can't find it anymore because that story/headline proves Trump is correct, and the NYT can't have that.
Yea, NYT isn't biased. The are literally changing previously run stories that verify Trump's claims.

How you like them apples?