When “incidental” intel collection—isn’t incidental

The following is a news analysis.

[dropcap]I[/dropcap]’ve spoken to a small group of reliable, formerly high-placed intelligence officials who have dropped a few interesting tidbits on me of late. Here’s my understanding, based on the discussions:[hr]

• It’s not true that wiretaps and/or electronic surveillance of U.S. citizens can “only” be done with a FISA (Foreign Intelligence Surveillance Act) court order.

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• Besides the FISA court, “wiretapping” or electronic surveillance can also be done under Title III authority. The government used this authority, for example, in the Justice Department’s secret Fast and Furious “gunwalking” case.

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• Additionally, U.S. Presidents have the power to issue secret presidential directives that can authorize otherwise illegal acts (theoretically in the country’s best interests). These directives may come with pre-planned cover stories to be used in the event the operation is exposed, and they come with indemnity for those involved, giving them permission to lie about the operation or their involvement without fear of prosecution.

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• The public will rarely know about such presidential directives since most who see them must sign agreements that promise nondisclosure and consent to polygraphs.

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• Computer surveillance is a grey area in the intelligence community where many insiders argue the traditional privacy restrictions and surveillance rules don’t necessarily apply.

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• The term “wiretapping” is used in a general sense to refer to electronic eavesdropping, even though the actual “tapping” of “wires” is not routinely necessary with today’s technology and tradecraft.

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• Surveillance of domestic communications can be conducted in international waters where U.S. law doesn't apply.

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• There are “back-door” ways to collect and report on a target without Title III or FISA court authority. If it’s for political purposes or blackmail, this may consist of “inventing” an excuse to surveil the target.

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• [quote]If the work of targeting an individual cannot be accomplished by government intel officers, it can be contracted out to third parties or to foreign parties who aren’t bound by U.S. law.[/quote]

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• Incidental collection of a U.S. citizen target may be “orchestrated” for political reasons by those who have tools and tradecraft available to them because of their positions of power. There are ways to do it with no fingerprints.

For example:

1. Locate a foreign target already under CIA surveillance.
2. Have a government agent use the foreign target’s phone and/or computer to make it look like the foreigner contacted the U.S. citizen whose communications are sought. The contacts can be benign, but they establish a record that falsely implies a relationship exists between the U.S. citizen and the foreign target.
3. The government agent can also mimic a communication back from the U.S. citizen to the foreign target, creating an appearance that the U.S. citizen initiated contacts. This could be favorable to justifying a warrant on the U.S. citizen later.
4. The U.S. citizen is now tied to the foreign entity and is now an “incidental” collection target that can be surveilled in a “masked” format. Although “masked,” the surveilling agency knows the U.S. citizen's identity.
5. If the U.S. citizen does anything that can be construed as illegal or suspicious, it’s possible the intel agency can then receive approval to surveil him directly rather than only “incidentally.”[hr]

• Possibly inappropriate requests to "unmask" names of U.S. citizens captured during surveillance of a foreign target may be preceded by a chain of communications intended to provide a pretense or cover story to justify the unmasking.

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