Rep. Devin Nunes, the California Republican and chair of the House Intelligence Committee, claimed Wednesday that “the intelligence community incidentally collected information about U.S. citizens involved in the Trump transition” between President Trump’s election and his inauguration.
Nunes then headed to the White House to brief Trump. White House press secretary Sean Spicer read Nunes’s statement at a press conference and called it “startling information,” implying that it justified Trump’s recent claims that Trump Tower was wiretapped on former President Obama’s orders.
The underlying reality is likely significant but far less exciting: That Trump transition staffers were picked up by standard U.S. surveillance as they arranged for Trump to receive standard post-election calls from world leaders.
If so, what Nunes was describing would not vindicate Trump’s claims, and would also be a separate matter from reported contacts by Trump associates with Russian intelligence officials before the election.
A key goal of the National Security Agency is to monitor the communications of foreign leaders and their staffs. As documents leaked by former NSA whistleblower Edward Snowden revealed, this includes the leaders of allied countries like German Chancellor Angela Merkel. Friendly countries in turn spy on us just as enthusiastically.
Meanwhile, world leaders try to speak to newly-elected U.S. presidents as often as possible during the transition period, first to congratulate them and then to get a read on the incoming president and to influence their views on global politics.
But Trump’s transition, as reported at the time, was extremely chaotic; the president-elect’s team apparently went outside normal procedures to arrange many such calls, an approach that involved many staffers and others in Trump’s orbit.
For instance, former GOP presidential candidate Bob Dole played a role in setting up Trump’s precedent-breaking call with Taiwan President Tsai Ing-wen. President Mauricio Macri of Argentina said that he spoke with Ivanka Trump during his call with Trump. Australian Prime Minister Malcolm Turnbull got Trump’s phone number from professional golfer Greg Norman. The governments of Japan and China found it difficult to build contacts within Trump’s transition team and spent a great deal of time trying to do so.
So what would truly be “startling” would be if the U.S. intelligence apparatus hadn’t picked up many Trump staffers speaking with foreign targets of surveillance. This also means that comments like those of Democratic Rep. Ted Lieu of California, who said on Twitter that Trump “officials were either talking to agents of a foreign power, or people suspected of crimes,” are not meaningful. The people with whom Trump’s transition team would be speaking would of course be agents of a foreign power, and there would be nothing wrong with that.
All that said, Trump absolutely will have a legitimate complaint if Nunes was correct when he claimed that “details about U.S. persons associated with the incoming administration with little or no intelligence value were widely disseminated in intelligence community reporting [and] additional names of Trump transition team members were unmasked.”
Privacy advocates have long been concerned about exactly this type of scenario. When the communications of U.S. persons are swept up in spy agency surveillance, their identities can be used in queries against intelligence databases, but must eventually be masked through a process known as minimization. However, many identifying characteristics remain available to intelligence agents, both before and after minimization, allowing the government to engage in something akin to spying on Americans without a warrant. Moreover, NSA staff may decide to unmask Americans’ identity on their own, or be asked to do so by their superiors. This almost certainly is how it was possible for anonymous “current and former U.S. officials” to know that Michael Flynn discussed sanctions against Russia with that country’s ambassador, and then leak it to the Washington Post.
The best outcome now would be for Trump to use his power as president to declassify anything he wants, and make as much information public as possible about this “incidental collection.” If in fact any surveillance was conducted on his transition team that was improper by the government’s own standards, he has the power to prove it. If it wasn’t, he owes it to the U.S. not to hide what happened behind the classification curtain. Moreover, releasing everything would be an extremely valuable education for the American public about how much the government collects on its citizens even when it’s following its own rules.
In a recent conversation at the SXSW conference with The Intercept’s Jeremy Scahill, Snowden explained in more detail how the communications of Trump or his staff could have been picked up — and why Americans should be concerned not about Trump’s vulnerability to such wiretapping, but about their own:
SNOWDEN: Now, if you are an American citizen and they say, “I want to look at your communications, I want to listen to this person’s phone calls and everyone they contacted,” this in theory is supposed to require a warrant. But the actual reality here is that they can do something different, and they do do this without a warrant… if they look at the other side of that communication, right? The communication that went overseas or involved a non-U.S. person in any way, that’s entirely legal. That happens without a warrant. …
If anybody at the NSA, if anybody at the FBI, wanted to review communications about President Obama, right? Like me, sitting at the NSA, I could do that simply by typing in an IP address that doesn’t even have to be the president’s IP address, right? Or if I want to search for his private email address or something like that, all I have to do is type it in the system, hit ‘enter,’ and say, “show me U.S. results for this.” This is entirely legal, so long as I’m not targeting him officially. So, I’m saying, I’m not interested in Obama, right? I’m interested in this known system that’s affiliated with Chinese cyber espionage or whatever, that just happens to be Obama’s Blackberry…
I think it is possible, based on everything we see and what we hear, there may be some indication that something like this happened on the backend, right? Where there’s been some searches that implicate not Donald Trump directly, right? Because if he had that, he’d be up on the stage waving it around on TV. …
That’s the problem. It’s not so much that this actually happened here, there, or the other, because we don’t have evidence for that. If Donald Trump wants to take this seriously, right, he needs to fix the problem that everyone in America’s communications are being collected right now without a warrant, and then going into the bucket. And they’re protected by very lax internal policy regulations, right? And this simply is not enough. If he’s worried about the fact that somebody could have been wiretapping Trump Tower, that this could have happened without a warrant, or even with a warrant, right, the problem is not, oh, you know, poor Donald Trump. You’re the president, right? You should be asking questions about, “Why was this possible in the first place, and why haven’t I fixed it?”
Listen to the entire interview on the Intercepted podcast.