What The Heck Is Devin Nunes Talking About? A Guide for the Perplexed
Benjamin Wittes, Susan Hennessey, and Quinta Jurecic write in Lawfare:
Earlier today, Devin Nunes held a headline-making press conference on Capitol Hill in which he made the following statement:
[F]irst, I recently confirmed that on numerous occasions, the intelligence community incidentally collected information about U.S. citizens involved in the Trump transition. Details about persons associated with the incoming administration, details with little apparent foreign intelligence value were widely disseminated in intelligence community reporting. Third, I have confirmed that additional names of Trmp transition team members were unmasked. And fourth and finally, I want to be clear, none of this surveillance was related to Russia, or the investigation of Russian activities, or of the Trump team.
Nunes said the HPSCI would be investigating the following questions:
Who was aware of it?
Why it was not disclosed to Congress?
Who requested and authorized the additional unmasking?
Whether anyone directed the intelligence community to focus on Trump associates?
And whether any laws, regulations, or procedures were violated?
Nunes repeated many of his claims at a later press conference at the White House this afternoon, and made the additional claim that there are FISA warrants connected to—though not necessarily targeting—President Trump.
Let’s start with the basics. The full text of what Nunes actually said appears at the bottom of this post. The video is here.
What exactly Nunes is alleging remains a bit opaque. In his initial statement, he makes what seem to be bold and unequivocal claims, but he then spends the question and answer period significantly undercutting several of them.
His statement, for example, says that he has “confirmed” that the intelligence community “incidentally collected” the information in question. But he later says he will say only that it “looks like incidental collection” and acknowledges that he does not know how it was “picked up.”
Nunes repeatedly says he thinks the collection was lawful under FISA, but then characterizes himself as “alarmed.” Furthermore, his statement only references the Trump transition, and it is unclear whether that does or does not involve communications involving President Trump himself. When asked if the President’s own communications were involved, in fact, Nunes gives a number of contradictory responses. It’s not clear at the end of the day whether the issue here is communications about Trump, by Trump transition officials, Trump’s own communications, or a combination of the above.
Still, there’s enough information on the table—assuming any of it is accurate—to begin addressing some questions that lots of people are probably asking. So here’s what we can say based on Nunes’s comments.
Does any of this vindicate or validate Donald Trump’s claims that President Obama wiretapped him?
Answer: Not even close—even assuming that the most flamboyant version of Nunes’s comments are wholly true.
Trump did not wake up early on a Saturday morning and tweet that the NSA or FBI in the course of its normal foreign intelligence operations incidentally intercepted communications or data involving the Trump transition. He didn’t allege that communications were intercepted legally. And he didn’t allege either that the problem—if there is a problem—lay in the masking or unmasking of U.S. persons in lawful intelligence community reporting.
Trump alleged, rather, (1) that his own wires were tapped—with two p’s, no less, (2) that a specific facility in the United States (Trump Tower) and that he personally were specifically targeted for collection, (3) that the surveillance was illegal, (4) that it took place during the campaign, and (5) that it was all ordered by his predecessor, Barack Hussein Obama.
All of those claims appeared to be malicious lies when he made them. And nothing that Nunes is saying, even if it’s all true, supports any of them.
Is it surprising or scandalous that Trump transition communications might be subject to incidental collection?
Answer: Almost certainly not.
Nunes concedes that all of the interceptions appear to be lawful. So we’re not dealing here with a situation of scandalous political spying on an American presidential transition. The nature of incidental collection is that the targets are lawful overseas non-US persons who happen to have contact with US persons, whose communications thus get swept up in the course of spying on someone else.
Now remember that the Trump Transition violated a lot of norms under which transitions don’t generally run entirely independent foreign policies before taking office. The Trump transition organized all sorts of calls with foreign leaders (legitimate targets for surveillance) without coordinating with the State Department or, presumably, the intelligence community. Trump himself famously chatted with the Prime Minister of Pakistan, undid (temporarily) the One China Policy by taking a call from the President of Taiwan, and did his best to torpedo a UN resolution against Israeli settlements, leading Egypt to withdraw the resolution (only for the U.S. to abstain from the vote on the resubmitted resolution the next day). His staff presumably had any number of other communications with folks abroad whom the intelligence community would be derelict not to be listening to. So it’s not remotely surprising that some communications by some Trump transition people ended up being incidentally collected. Indeed, it would be surprising if none had.
Is there anything surprising or upsetting here?
Nunes makes two allegations that we put in the category of upsetting if true. The first is that “details with little apparent foreign intelligence value were widely disseminated in intelligence community reporting”—a matter he later alleges took place dozens of times. This should, of course, never happen. When US person information is collected, it is supposed to be minimized unless it has foreign intelligence value. So if Nunes is right here, he’s describing a genuine problem.
He also alleges that he has “confirmed that additional names of Trump transition team members were unmasked”—additional, here referring to in addition to General Flynn. There’s nothing wrong with unmasking in and of itself. But in combination with the previous allegation—that material with little foreign intelligence value was disseminated—unmasking could be a very serious matter. That is, Nunes appears to be alleging that the intelligence community reported a whole lot of material incidentally collected about the Trump transition that was of no foreign intelligence value and then unmasked the US persons involved. This would be a significant abuse if it were true.
But that only raises the question: Is it true?
Color us skeptical—at least for now. Nunes is clearly shooting from the hip here. He clearly does not have all the facts himself (he admits as much). And his allegations are a deep challenge to the professionalism of the men and women of the intelligence community in the conduct of some of their most politically sensitive work. So at least until we learn more facts, we’re going to take Nunes about as seriously as we take Edward Snowden and Glenn Greenwald when they are comparably breathless in alleging intelligence community malfeasance without knowing all the facts in pursuit of their political goals. One shouldn’t presume what he says is false. But we’re not going to presume it true either.
So why is Nunes shooting from the hip here and going public before he has any idea what he’s talking about?
Answer: Beats us.
It’s a bit of a puzzler, really. Nunes says he doesn’t have any reason to think this collection was illegal. In his second press conference, he said that he thinks there is some level of surveillance activity “perhaps legal, but I don’t know that it’s right and I don’t know that the American people would be comfortable with it.” Does Nunes mean to say he believes that there are forms of lawfully authorized surveillance which he believes are ethically wrong? If so, this is an odd format for a HSPCI Chairman to make such a startling revelation to the American people. He says that the Administration was not yet aware of the information and that he would be speaking to the White House later in the afternoon. According to both Nunes and the office of committee Vice Chair Adam Schiff, Nunes did not speak to Schiff prior to the press conference. He says he has spoken to NSA Director Admiral Rogers but not FBI Director Comey. So why is he holding a press conference before getting even his basic facts straight?
Bob Dole once famously quipped that the most dangerous space in Washington was the space between then-Rep. Charles Schumer and a TV camera. Just a hunch, but something similar might be going on here.
Did Nunes publicly disclose anything classified?
Answer: We’re not sure but it’s a question well worth asking.
As Comey said at Nunes’s hearing on Monday, “ . . .
Also, it’s well worth reading Jennifer Rubin’s Right Turn columns this morning, beginning with the always interesting “Morning Bits.” She’s a conservative Republican, and she’s clearly livid with anger over how Nunes is making things so much worse.