This is a worth a quickie post given how much confusion there was about it on conservative Twitter last night. It began with this tweet from NYT writer Matthew Rosenberg, insisting that his paper never reported that Trump or members his campaign had been wiretapped.
Hold up. Wasn’t … this the front page of the Times on the morning of the inauguration?
Indeed it was. Focus on the second sentence of Rosenberg’s tweet, though: He’s not claiming that Trump’s aides were never recorded, he’s claiming that they were never the targets of FBI wiretaps. Obviously, when two people are talking on the phone, there are two ways for U.S. intelligence to record that conversation — by ‘tapping party A or by ‘tapping party B. Trump’s tweetstorm on Saturday morning claimed that Obama had wiretapped him, party A:
But what if the feds actually wiretapped party B, Russian agents, and picked up conversations involving Trump aides that way? Here’s the relevant passage from the Times’s January 20th story, co-authored by, er, Matthew Rosenberg. Note what it doesn’t say:
Mr. Manafort is among at least three Trump campaign advisers whose possible links to Russia are under scrutiny. Two others are Carter Page, a businessman and former foreign policy adviser to the campaign, and Roger Stone, a longtime Republican operative.
The F.B.I. is leading the investigations, aided by the National Security Agency, the C.I.A. and the Treasury Department’s financial crimes unit. The investigators have accelerated their efforts in recent weeks but have found no conclusive evidence of wrongdoing, the officials said. One official said intelligence reports based on some of the wiretapped communications had been provided to the White House.
It doesn’t say that the feds ‘tapped party A, i.e. Manafort, Page, or Stone. The far more likely possibility is that they ‘tapped party B, i.e. Russians suspected of being operatives for Moscow to some greater or lesser degree, and ended up recording incidental conversations that those Russians had with Trump’s aides. The FBI wiretaps foreign agents all the time, after all, including the Russian ambassador, Sergei Kislyak. That’s how they came to discover Mike Flynn’s conversation with him in late December about sanctions. There was no wiretap on Flynn, party A, the soon-to-be national security advisor; the ‘tap was on Kislyak, party B. (Flynn, an intelligence veteran, surely knew that Kislyak was being wiretapped when he spoke to him.) It would be, in the words of Julian Sanchez, highly shady if the feds wiretapped the Russians only because they were trying to gather info on Manafort et al., a practice known as “reverse targeting.” But there’s no evidence (yet) that they did. They’re probably monitoring hundreds of Russians at any given time as a matter of course in their counterintelligence practices. If any of those Russians had reason to speak to a Trump staffer, even for innocent reasons, the call would have been recorded. And if there were multiple calls over time, that could have piqued the FBI’s curiosity.
Rosenberg all but confirmed that this is what happened in a separate tweet last night. The feds didn’t target any of Trump’s aides. They recorded their conversations in the course of targeting foreign agents:
When I responded that it sounds like they got the Trump staffers’ communications the same way they got Flynn’s, by wiretapping Russians, he answered “Precisely.” Likewise, the Times itself noted yesterday that it never claimed in the January 20th story that Trump’s aides were the target of the FBI’s wiretaps. All of which is important, again, because that’s the core of Trump’s accusation against Obama: He claimed that O’s DOJ specifically targeted phones in Trump Tower, a grave charge if true as that would mean either illegal wiretapping of an American citizen for political reasons or reasonable suspicion that someone inside the building was themselves an agent of a foreign power. But if in fact it was Russians, not Trumpers, who were being wiretapped? Well, that happens every day. So long as there was no deliberate “reverse targeting,” what were the feds supposed to do — mute the line when they heard their Russian target in conversation with an American? The law doesn’t ask them to do that:
Under FISA, any information that does not have “foreign intelligence” value must be “minimized” or masked in the transcript. That includes the names of U.S. citizens who are picked up speaking to the target unless their identities are relevant to understanding the foreign intelligence.
In a typical counterintelligence investigation, if an agent is trying to figure out a target’s network, conversations — even those that might appear innocuous at first — are more likely to be considered relevant. Thus the minimization rules for national-security wiretaps are more lenient than those for criminal wiretaps because spies and terrorists generally use more sophisticated tradecraft to evade surveillance.
There’s an exception to minimizing identifying information about an American, the Times pointed out in a different story yesterday, “if the conversation constituted foreign intelligence and the American’s identity is necessary to understand its significance, as would be the case with Mr. Flynn’s discussion of sanctions.” Did the communications between the Russians and Trump’s aides fall under the same exception? There’s not enough reporting out there to be sure, but the Intercept noted a few weeks ago after Flynn’s resignation that “incidental communications” involving Americans are routinely picked up in wiretaps of foreign persons and Congress has thus far resisted efforts to strengthen the protection of those Americans’ identities. None of which is meant to excuse the obviously politically motivated leaking about the wiretaps to the media, to create suspicion around Trump and his advisors. But to return to the baseline question — “Didn’t the Times already claim that Team Trump was being targeted with wiretaps by the Obama administration?” — the answer is no. No targeting, merely incidental communications.
One last note. The Times claimed yesterday that it’s trying to confirm the reports from Heat Street, the Guardian, and the BBC that the FISA court granted an order last October to monitor a server in Trump Tower that was communicating with a Russian bank. No dice so far: “To date, reporters for The New York Times with demonstrated sources in that world have been unable to corroborate that the court issued any such order. (Computer specialists have also pointed out that the server in question does not appear to be located in Trump Tower.)”
Update: We can’t take the president literally when he accuses his predecessor of wiretapping him during the campaign?
Devin Nunes just chastised press for taking Trump literally w/Obama accusation
Yes—he's POTUS. He accused fmr POTUS of committing a felony. pic.twitter.com/YzrBj4JSYk
— Bradd Jaffy (@BraddJaffy) March 7, 2017