BBC revealed that the Foreign Intelligence Surveillance Court declined to issue a warrant that would authorize the surveillance of these officials. This is highly unusual, given that court's practice of approving virtually every application of that type (with a historical rejection rate of 0.03%). It should be noted that the warrant application did not allege there was probable cause these officials committed a crime. However, the denial was likely predicated on the court's fear of "reverse targeting", in which information obtained pursuant to exemptions that apply only to foreign intelligence gathering is later used in criminal prosecutions, contrary to the Fourth Amendment.
The subsequent (and unverified) allegations that led to Trump's outburst raise the possibility that after this warrant application was denied, the National Security Agency concluded that they did not need a warrant owing to the executive branch's interpretation of the Foreign Intelligence Surveillance Act, which allows the President, through the Attorney-General, to authorize foreign intelligence surveillance ostensibly aimed at foreign entities or involving only business records. However, an administration's wiretapping of the other party's presidential campaign does raise the the specter of the Watergate break-in, when President Nixon sent his "special investigative unit" to bug the offices of the Democratic National Committee looking for "dirt" on George McGovern's campaign. Forty-four years later, this sort of effort would no longer require burglary, only hacking.
There is no scholarly consensus on the constitutionality of these procedures, nor is their any agreement in the executive branch on the boundaries of the permissible use of information obtained in this manner. However, in its last days, the Obama Administration loosened the already minimal restrictions, to allow the NSA (which conducts most foreign intelligence surveillance) to share what it obtains with other agencies (including law enforcement agencies like the Federal Bureau of Investigation) without first stripping out information on American citizens. The ACLU and other civil liberties organizations flagged this as extremely dangerous, as it magnifies the danger of reverse targeting exponentially.
Amidst calls for a Special Prosecutor (who would not be independent, as I discussed in the last blog post) to investigate claims of Russian interference in the presidential election, there are now calls to empower him or her to look into the wiretapping allegations. It is likely that any investigation into the alleged misuse of intelligence surveillance will devolve even further into the political mire. Already, the debate is turning on appeals to the credibility of various officials.
Former Director of National Intelligence James Clapper asserted there was no such surveillance of the Trump campaign --his eminent position in the Obama Administration was used to buttress appeals to his credibility, despite the fact that while in that position he lied to Congress about the NSA's warrantless surveillance, and the fact that he was subsequently forced to apologize for this after Wikileaks and Edward Snowden revealed his deception. Supporters of each party also cherry-picked his statements: for instance, Democrats ignored the fact that Clapper attested that there was no evidence of Russian interference in the presidential election.
The fact that these allegations will not lead to a neutral and balanced assessment of foreign intelligence surveillance is troubling. For fifteen years, scholars used this sort of scandal as a worst-case scenario when arguing that the post 9/11 amendments to the Foreign Intelligence Surveillance Act were dangerous to democracy. It allows a president to misuse the NSA in ways that Nixon could only dream about; the politicization of the intelligence community also takes America one step closer to a banana republic. It should be noted that before the scandal broke, Trump was on the record as an enthusiastic supporter of these surveillance programs.
Of all of Trump's faults, his desire to seek peaceful coexistence with Russia hardly seems the most egregious (except perhaps to hardliners seeking direct military intervention against the Syrian government). FISA's exemptions for intelligence surveillance created a system in which an allegation that a candidate is an agent of a foreign power became the only smear that mattered --because it was the only allegation that would allow for almost limitless surveillance at the executive's discretion.
As a result, many of Trump's democratic opponents are like a drunk looking for his keys under a streetlight: the keys--like Trump's scandals--might be somewhere else, but it's easier to see under the light than to search for what's in the shadows. Searching only where FISA surveillance leads has brought America back to McCarthyism, in which Russia is the enemy of enemies. This is not necessarily bad for the intelligence agencies (or at least for their budgets) but it may not be good for America, or for peace.