Mollie Hemingway put out a tweet (which I am not going to bother to chase down) asking Trump critics and defenders of the Trump/Russia investigation what is this distinction between counter-intelligence investigation and spying on the Trump campaign, because she sees it as a distinction without a difference. And she has gotten answers from intelligence professionals, one saying that "spying" means intelligence collection in a foreign country in violation of its domestic law, while counter intelligence is internal investigation, under our domestic laws and regulations governing it. Thus, for instance, the warrant requirement for a FISA wiretap at home, while no such requirement is made abroad.
But colloquially I don't think that is an acceptable distinction. Or maybe I should say, that may be the legal line between spying and counter-intelligence, but I do not think it is the proper line between what is acceptable and what is unacceptable. Treating the distinction here not as a legal term of art, but the distinction between what is and is not acceptable, here is what I would say.
It would be "spying" to have an informant in the Trump campaign wearing a wire and keeping the FBI in the loop on the internal workings of the Trump campaign. It would also be "spying" if the informant does not wear a wire, but simply gives regular reports. Or if there is a wiretap of the Trump campaign. Or if the FBI has agents secretly sitting in the building across the street keeping tabs on who goes in and out of campaign headquarters.
In short, seeking more-or-less real time information on the internal workings of the Trump campaign would be "spying" and unacceptable.* That would apply even if the FBI did not actually use this information to disrupt the campaign or attempt to sway the election although, of course, doing so would be even worse.
On the other hand, if the Russians are hacking the Democrats and releasing the information gained so as to give the Trump campaign the advantage, any investigation of the Russian hacks would be appropriate counter-intelligence. And if the Trump Campaign keeps having suspicious looking contacts with the Russians, I would not see investigating those contacts to see whether they were innocent as "spying." Investigating campaign contacts with Russians is not an intrusion into the inner workings of the campaign, or a real-time following of events, but an after-the-fact investigation of foreign contacts to see if there was illegal foreign meddling in the election.
Thus, for instance, sending an academic who is also an informant to make discrete inquiries about George Papadopoulos' contacts with Joseph Mifsud is not "spying." It does not seek to know the inner workings of the Trump campaign, but merely whether a Russian agent gave the campaign advance warning of the hacking. That is a reasonable thing to want to know. In fact, even Trumpsters sort of seem to acknowledge as much, because they say that, OK, maybe it was reasonable to ask about that particular exchange, but why the secrecy? Why not send official agents to introduce themselves and flash a badge. The obvious answer was the FBI did not trust Papadopoulos to tell the truth and, indeed, when formally interviewed by the FBI he lied. Keep in mind that this is the only instance Trumpsters have offered of the FBI placing and informant in the campaign and since the agent (Stefan Halper) was not, in fact, part of the campaign, and did not seek information beyond this particular contact, he was not "spying."
I agree with Trumpsters that asking an allied intelligence service to do the surveillance on the Trump campaign that our domestic laws do not allow would be inappropriate spying. I do not agree that having allied intelligence services look into the Trump campaign's external contact with Russian to see what they could learn would be "spying."
Ah, but what about the Carter Page wiretap, Trumpsters may ask. Wasn't that inappropriate spying? And the only reasonable answer can be a definite maybe. Page had left the campaign at the time the FBI got their warrant, but he remained in contact with it. So the possibility was that that the FBI might inappropriately listen in on the internal workings of the campaign and not just Page's foreign contacts. It would all depend on FISA "minimization procedures." These procedures are required because all wiretaps, however legitimate, will sweep in some innocent communications. Minimization procedures are measures for screening out innocent communications.
As I understand minimization procedures, if the FBI knows that a communication is innocent, it may not listen in. If it does not know, it may listen in to determine whether the communication is innocent. Upon determining that a communication is innocent, the FBI must cease surveillance and destroy the recording. Not all Page's Russian communications would necessarily be proper targets for surveillance; some might conceivably be innocent. And likewise, not all Page's communications with the Trump campaign would necessarily be off limits. If Page was communicating what the Russians were up to and how to work with them, that would get a legitimate target.
In short, whether the Page wiretap inappropriately spied on the Trump campaign would depend on the minimization procedures employed. That information has not been released.
So, sure, I have no real objection to investigating to see whether the investigation ever crossed the line. But let's set some clear parameters on what that "line" is.
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*Thus far I have seen no evidence of such "spying," the I am not ready to rule it out yet. And the reason is John Schindler's article suggesting that the FBI really did have a "mole" in the Trump campaign, either an individual or some extremely top secret form of signals intelligence. Schindler seems to believe such a source exists, and to defend it. Schindler crosses over into paranoia sometimes, so I by no means accept his word as final. But I cannot rule out the possibility for that reason.
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