When “incidental” intel collection—isn’t incidental

I’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:

• 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.

• 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.

• 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.

• 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.

• 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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