On Wednesday, House Intelligence Committee Chair Devin Nunes made an unexpected revelation. The president and his associates, Nunes told a gaggle of reporters, were swept up in “incidental collection” by US intelligence agencies. It’s a charge that almost sounds like it validates Trump’s recent tweeted accusations that President Obama “wiretapped” Trump Tower. But it doesn’t.
As with any story where so much of the underlying information remains classified, there aren’t many details to work with. A close look at what Nunes said today, though, fails to confirm any of Trump’s previous assertions. If anything, it raises more questions.
In case there’s any doubt, the Trump team has already championed the Nunes comments as validation. When asked if he feels vindicated by Nunes a few hours alter, Trump said “I somewhat do… I very much appreciated that they found what they found.”
In a throatier statement, the Trump-fundraising Great America PAC sent out an email blast to its members that included the following (including the emphasis):
“Friends, we’ve been vindicated and there’s nothing the mainstream media can do about it now… And once again, our President was right.”
But here’s the thing: Nothing in the Nunes comments indicates that to be so, especially if you hold Trump to his original tweets.
How low has President Obama gone to tapp my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!
— Donald J. Trump (@realDonaldTrump) March 4, 2017
Let’s start from the top.
“I recently confirmed that on numerous occasions the intelligence community incidentally collected information about US citizens involved in the Trump transition,” Nunes said to open his comments this morning.
“Incidental collection” means something very specific. It’s a term that’s used in connection with Section 702 of the Foreign Intelligence Surveillance Act, and it refers to the communications of US citizens that get swept up in surveillance of a foreign national. It’s also incredibly common, especially given the broad authority that Section 702 grants the intelligence community.
“It sweeps in such a huge pool of foreign targets,” says Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program. “Thereby assuring that the incidental collection will be massive.”
Think of it like this: In the same way a shrimping net will invariably pick up algae and discarded beer cans, monitored communications yield chatter from anyone within a given target’s orbit. So right away, what Nunes is describing is nothing abnormal. Rather, the most abnormal thing about his comment isn’t the content, but the fact that he made it at all.
Then Nunes seemed to confirm FISA’s role in the communications. “This appears to be all legally collected foreign intelligence under FISA, where there was incidental collection that ended up in reporting channels and it was widely disseminated,” he said.
Yes, legal. While the scope of Section 702 draws plenty of scrutiny from civil liberties activists, there’s nothing illicit about it. It also doesn’t imply illegality on the part of its targets; foreign nationals don’t need to be under any sort of investigation to be targeted, they just need to hold some sort of intelligence value. Fold in that the surveillance Nunes brought to light today allegedly primarily took place during Trump’s transition months—a time when he and his team would be in touch with their counterparts around the world—and the revelation starts to look less like a scandal and more like common sense.
You would absolutely expect members of Congress, members of the administration, members of a transition team to be routinely caught up in that surveillance incidentally. Elizabeth Goitein, Brennan Center for Justice
“It’s completely unsurprising that members of the Trump transition team would have been caught up in Section 702 surveillance,” says Goitein. “You would absolutely expect members of Congress, members of the administration, members of a transition team to be routinely caught up in that surveillance incidentally.”
Nunes made other complaints that may be more valid, especially the allegation that members of the transition team were “unmasked,” which is to say they were identified by name in intelligence reports. And he expressed frustration that the intel was “widely disseminated in intelligence community reporting.”
Here, though, Nunes is makes the assumption that unmasking a US citizen is inherently pernicious. Not so, says former NSA lawyer April Doss. In fact, it’s only done so when fully understanding that the intelligence depends on knowing that identity. It’s also not used to unmask that person to a wide audience.
“When you consider that all of these reports are written with classified channels, marked with classification designations, intended to be accessed by people with an authorized need to know, the fact that a US person is named in intelligence is not necessarily shocking,” says Doss. “Sometimes you simply need that name to understand that intelligence.”
And in fact, according to a statement in response to Nunes from Democratic Rep. Adam Schiff, who heads up the Intelligence Committee alongside Nunes, it turns out that most of the names in the intercepted communications were masked after all.
“The Chairman informed me that most of the names in the intercepted communications were in fact masked, but that he could still figure out the probable identity of the parties,” said Schiff.
So much for that. And so much for the implication that what Nunes revealed validates Trump’s claims. In fact, one more Nunes quote might be helpful to underscore just how little any of this supports that initial Twitter flurry.
“I’ve always said from day one that there wasn’t a physical wiretap of Trump Tower,” Nunes said. “I still don’t have any evidence of that at all.”
A Source, of Course
What Nunes did accomplish was to provide just enough cover for the White House to excuse a few embarrassing tweets. He did so, though, at potentially serious cost.
Take a step back to consider Nunes’s actions. First, just two days after excoriating national security leakers during a hearing on Russian election interference, he went public with information about an investigation, based on information from an unnamed source, before speaking with Democratic ranking member of the Intelligence committee Rep. Adam Schiff, the White House, or anyone outside of House Speaker Paul Ryan and the heads of the CIA and NSA.
That also means it’s all unconfirmed, therefore conveniently impossible to parse. Then, Nunes took the further step of bringing this intelligence directly to the White House, a group of people that his committee should be overseeing, rather than assisting. All of which happened within the context of an investigation into Trump and his surrogates’ ties to foreign powers.
“I have expressed my grave concerns with the Chairman that a credible investigation cannot be conducted this way,” said Schiff in his statement.
Outside voices were even more outspoken.
“I’ve got to believe that other members of the committee are horrified at what they just witnessed,” said former DOD Chief of Staff Jeremy Bash in an MSNBC interview. “It’s very concerning, particularly when what he is saying is that the collection was lawful, it was court-ordered by lifetime federal judges against valid foreign intelligence targets.”
Not, since it needs repeating, against Trump or his team.
So no, Nunes did not vindicate Trump. In what appears to be an attempt to, though, he sowed confusion and mistrust, both within his committee and for US citizens at large. That might make for a good fundraising email. But it’s hell on democracy.