- Nunes says he has seen intelligence reports that identify Trump team members, suggesting that they could have been surveilled.
- As far as we know, Trump associates were not the intended target. Rather, the information was apparently collected incidentally in surveillance of legitimate foreign targets.
- This raises questions about whether rules that protect the privacy of Americans picked up in foreign surveillance were followed.
- However, it does not indicate that President Obama ordered the phones in Trump Tower to be tapped.
House Intelligence Committee Chairman Devin Nunes announced Wednesday that Trump associates may have been picked up in foreign intelligence collection. That’s very likely true. This should come as no surprise to regular Roughly Explained readers. We told you about this weeks ago. Is it evidence that Trump’s tweet-storm accusing his predecessor of tapping his phone was true after all?
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
While Nunes raises some legitimate concerns, the information he reports does not substantiate President Trump’s claim that President Obama tapped his phone. As Nunes told CNN’s Jake Tapper on Thursday, this “doesn’t mean that Obama wiretapped Trump Tower,” Nunes said.
Trump’s tweet, taken literally, accuses his predecessor of ordering the U.S. government to listen in on his phone calls, something which the President does not have the legal authority to do. If this were true, as Trump’s tweet says, it would indeed be “Watergate.” Maybe worse. We remain unaware of any evidence that would support this accusation.
What Nunes is talking about is different. “This is a normal, incidental collection, based on what I could collect,” Nunes said. “This appears to be all legally collected foreign intelligence under” the Foreign Intelligence Surveillance Act. In other words, this is “incidental collection,” information that was collected as part of other lawful foreign intelligence surveillance. No one, as far as we know, ordered this surveillance specifically to target Trump.
Incidental collection on US persons as part of foreign intelligence surveillance is not particularly unusual. There are detailed procedures established for dealing with the situation. These rules, called FISA “minimization procedures,” restrict how such incidental collections of conversations involving U.S. persons may be used and under what circumstances their identities can be “unmasked” in intelligence reports.
Three Big Questions:
Were FISA minimization procedures for “unmasking” properly followed?
Was the dissemination of the information beyond what was required for national security purposes?
Did anyone break the law by leaking classified information?
Nunes indicated that the intelligence reports he reviewed include information about and names of US persons associated with Trump. Importantly, he said that there did not appear to be a clear national security purpose associated with identifying the Trump staffers. That last part is important.
Under the FISA law, if a US person is picked up as part of foreign intelligence surveillance, their name must be masked from any reporting unless there is a pretty good reason that it is important to national security that their name be revealed. If Obama officials improperly “unmasked” names of Trump staffers, they could face criminal charges.
There are potentially serious questions raised here that it is appropriate for Congress to ask. Still, incidental collection in the course of legitimate surveillance of foreign intelligence targets is not the same as the deliberate (and presumably illegal), targeting of Americans, directed by President Obama, that Trump’s tweets suggest.
This story has been updated.