Former CIA Director Michael Hayden said Saturday that President Donald Trump's hinting this week that more information could be forthcoming to support his wiretap claims might be alluding to a surveillance activity allowed under U.S. law known as "incidental collection."
"Some folks said he was doubling down on his claim," Hayden told CNN's Michael Smerconish regarding Trump's interview Wednesday with Tucker Carlson on Fox News. "I don't think so."
President Trump told Carlson that "wiretap covers a lot of different things.
"I think you're going to find some very interesting items coming to the forefront over the next two weeks," he said.
Two days earlier, White House spokesman Sean Spicer tried to explain Trump's March 4 Twitter posts alleging the wiretapping by President Barack Obama during last year's election.
"If you look at the president's tweet, he said wiretapping in quotes," Spicer told reporters. "The president was very clear in his tweet, it was wiretapping.
"That spans a host of surveillance options."
Hayden, 72, a retired four-star Air Force general who also directed the NSA, described Trump's comments this way to Smerconish: "He was picking up his chips and going to another table.
"He was backing away from the literal accusation that President Obama had ordered the wiretapping of Trump in Trump Tower.
"I think where this is going," Hayden prefaced. "The lifeline that the administration is hoping they can grab onto is something that we call incidental collection."
Under the Foreign Intelligence Surveillance Act, the attorney general and director of national intelligence can authorize spy agencies to "sweep up" the telephone and Internet data of U.S. residents who communicate with foreign targets in what is known as "incidental collection."
The secret FISA court allows the surveillance in accordance with the Fourth Amendment to the Constitution.
The agencies can then search those communications for evidence of crimes, even if they are not related to terrorism.
"This happens fairly routinely," Hayden told Smerconish. "If that [foreign] target now gets involved in a communication to, from — or even about — a U.S. person, we are allowed to continue to cover the target.
"We just have to protect the U.S. person's privacy," he added.
In that case, "we do what's called 'minimize' the information," Hayden said. That keeps the identity of the U.S. individual secret unless it is critical to the intelligence.
Should that identity be revealed, it is called "unmasking."
"We are just targeting the foreigners," Hayden told Smerconish.
He said that this is how the surveillance tactic relates to Trump's assertions: "I suspect that if there is any example of a U.S. identity being unmasked that has any relationship to the Trump campaign or Trump Tower — again, very normal, very correct and very legal — the White House goes: 'Ah-ha. I told you so.'
"I think this is where it is going," Hayden said.
He noted that the top Republican and Democrat on the House Intelligence Committee asked spy agencies this week to provide data on recent incidental collection efforts.
"This is actually a very good way to do our job and protect American privacy."
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