Rep. Devin Nunes, the chairman of the House Intelligence Committee and a leading defender of government surveillance programs, reacted with outrage when he found out the FBI had listened in on conversations between the Russian ambassador and a top Trump official.
“I expect for the FBI to tell me what is going on, and they better have a good answer,” the California Republican told the Washington Post. “The big problem I see here is that you have an American citizen who had his phone calls recorded.”
Telephone conversations between Michael Flynn, Trump’s former national security adviser, and Russian Ambassador Sergey Kislyak led to Flynn’s resignation.
The fact that communications from the Russian delegation in Washington are closely monitored should surprise no one. The FBI routinely uses the NSA’s eavesdropping techniques to monitor the delegation — for obvious intelligence and counterintelligence reasons — and as a former top intelligence official in the Obama administration, Flynn must have known that his conversation would be intercepted.
Yet after the news of Flynn’s resignation, several traditional surveillance defenders rushed to the defense of his privacy rights as an “American citizen.”
The surveillance-touting Wall Street Journal in an editorial Monday dropped its usual use of the term “intelligence professionals” to question whether “U.S. spooks” had a court order to listen to Flynn’s conversations.
What’s particularly ironic about Nunes’s comments was that he seemed to be ignoring one of the biggest gaps in U.S. surveillance law — one which he has personally defended — that allows the government to spy on millions of Americans without any sort of probable cause by targeting their communications with people overseas.
“The concept that many Americans’ communications are incidentally recorded when speaking to foreign targets is Foreign Intelligence 101,” said Jake Laperruque, senior counsel at the Constitution Project. “It’s hard to believe a competent intelligence committee chair doesn’t understand this.”
The Wall Street Journal has also celebrated the law that contains the loophole and after its reauthorization in 2013 praised Obama as an “unapologetic asserter of Presidential powers.”
In 2015, Reps. Zoe Loefgren, D-Calif., and Thomas Massie, R-Ky., introduced an amendment that would have required the FBI to get a search warrant in the exact situation Flynn is facing: when they rely on capabilities of the NSA to target international communications that involve Americans.
But rather than expressing concern then, Nunes sent a letter to his colleagues opposing the measure. “When the Intelligence Community acquires the communications of CT [counterterrorism] or CI [counterintelligence] targets abroad, among the most critical issues is to determine if they are communicating with persons in the United States,” he wrote.
In an email to The Intercept, a spokesman for Nunes tried to walk back the congressman’s earlier statement, saying his concerns were about whether Flynn’s identity could have legally been “unmasked” due to minimization procedures built into the Foreign Intelligence Surveillance Act.
The minimization procedures call for the redaction of names of “U.S. persons” when they are caught up in international surveillance. But they allow the identity of U.S. persons to be unmasked whenever it is necessary to understand the communication — which is almost certainly the case with Flynn’s call.
“This seems to be an excuse that either doesn’t comprehend or want to acknowledge how broadly the FBI can fully access any Americans’ incidentally recorded communications under FISA,” Laperruque said.
This is hardly the first time that foreign intelligence wiretaps have gotten U.S. persons in trouble. The FBI has relied on NSA-collected information in a number of criminal cases — and has even repeatedly failed to provide legal notice to defendants that the evidence used in their case was acquired that way.
It’s also not the first time that NSA hawks have — if briefly — leapt to the defense of privacy rights when the privacy being violated involved them or their political allies.
Last year, for example, Sen. Marco Rubio — who has argued for expanding and permanently extending many of the NSA’s surveillance programs — responded with shock and outrage upon learning in 2015 that the NSA was spying on the Israeli government and swept up some of his own communications in the process.
The problem for these newfound surveillance critics is that if they want to demand protections for Americans caught up in the NSA’s web, they have to do so for all Americans — not just their political allies.