House Intelligence Chairman Devin Nunes told reporters yesterday that members of Donald Trump’s presidential transition team — possibly Trump himself — had been caught up in surveillance during the last days of the Obama administration. Nunes says the surveillance, by both the FBI and NSA, looked to be legal “incidental collection” that had nothing to do with concerns over Russia collusion.
If true, this isn’t the “wiretapping” of Trump Towers, as Trump claimed in his infamous tweet a few weeks ago, but it is spying in any commonly understood sense of the word. The NSA routinely listens to calls and reads emails of Americans and collects other data “incidentally” from third parties, avoiding warrants. Section 702 of the Foreign Intelligence Surveillance, which has been found constitutional, states that government doesn’t need a warrant to collect information on Americans as long as the target of the collection is a foreigner.
That’s one thing. But if we’re to believe Nunes, the names of Trump and/or associates were “unmasked,” and details “with little or no apparent foreign intelligence value were widely disseminated in an intelligence community report.” CNN is reporting that some of the communications picked up were Trump transition officials talking about the president’s family. What possible need was there for those details to be passed around in an intelligence report? Who ordered the unmasking of the people involved? Was the information properly minimized? If the investigation wasn’t aimed at collusion with the Russians, what investigation ensnared the president-elect and his transition team?
While the answers might not vindicate Trump, they are legitimate questions.
If it turns out intel wasn’t properly minimized, this is the kind of abuse that civil libertarians have long warned undermines Americans’ privacy, a Fourth Amendment right. Many Democrats (and a few Republicans) have been warning about exploitation of 702 for years. Only last year, Minnesota Sen. Al Franken admitted that “information that we get through 702 can be misused.” The American Civil Liberties Union also opposes it (“We Must Rein in President Trump’s Spying Powers,” says a headline. Right.)
Some Senate Democrats specifically worried that the NSA could spy on politicians. The case of Jane Harman illustrates that it’s probably easier to smear a politician than to blackmail one. But in 2014, Sen. Bernie Sanders sent a letter to NSA Director Keith Alexander, asking him whether NSA had spied on members of Congress “or other American elected officials” Spying, he wrote, among other things gathers “any other data from a third party not made available to the general public in the regular course of business.”
We can argue with this definition of spying if you like, but the NSA’s public affairs office answered: “NSA’s authorities to collect signals intelligence data include procedures that protect the privacy of U.S. persons. Such protections are built into and cut across the entire process. Members of Congress have the same privacy protections as all U.S. persons.”
Intelligence agencies cannot share details about American citizens with no foreign intelligence value. If Nunes is right, how were these procedures not broken? If a Bush-era intelligence agency had engaged in “incidental collection” of Barack Obama’s phone calls in 2008, and then disseminated that information, the Earth would have stopped in its orbit. (Sen. Rand Paul claims Obama’s phone calls were intercepted 1,227 times and then masked. Being caught up in surveillance doesn’t necessarily mean you’re guilty of anything.) Now, because the person involved is named Donald Trump, journalists sprinted to the nearest media platform to push back against the story.
The top Democrat on the House Intelligence Committee, Adam Schiff, said in a statement that he had “grave concerns with the chairman that a credible investigation cannot be conducted this way.” It could very well be that Nunes is attempting to give the president cover. He’s a partisan, after all. That doesn’t make the incident potentially less serious. For one thing, the idea that the president shouldn’t be shown intelligence is nonsensical. But if partisanship is disqualifying, we might as well shut down DC. I mean, the other day, Schiff tweeted that the Russians had “hacked the election.”
When it comes to conspiracies about the NSA or FBI or collusion or “wiretaps,” my default position is hard skepticism. That goes for Nunes’ claims, as well. This, however, is not the default position of the media at large, especially on accusations against the administration.
Journalists, many of whom take every conspiracy about Russian and Trump seriously, have no reason to dismiss the potential abuses of the NSA. Even if intel agencies failed to minimize frivolous information, it is still an abuse. Nunes, as far as I know, has not made any bizarre allegations in the past. It’s not implausible that information legally obtained about Trump was subsequently abused by a government agency. In fact, Democrats have been warning us for years that something like this would happen.