National Security & Defense

FISAgate and Russia: Comey and Nunes Stir the Muddy Waters

Devin Nunes speaks to the media about Donald Trump’s allegation that his campaign was the target of wiretaps (Reuters: Aaron P. Bernstein)
And fail to break new ground in the Trump-Russia investigation. Questions remain unanswered.

Shortly after FBI director James Comey testified that there was no evidence to support President Trump’s tweeted claim that President Obama had him wiretapped at Trump Tower, House Intelligence Committee chairman Devin Nunes (R., Calif.) disclosed what is being regarded as “bombshell” news that members of the Trump transition team, potentially including then-president-elect Trump himself, were “monitored” by U.S. intelligence agencies.

So is Nunes contradicting Comey’s version of events? Have we broken new ground? If you have been reading National Review Online, you know the answer to those questions is no.

First, let’s recall what the state of play has been. For months, there have been reports that the Obama Justice Department and the FBI have investigated figures connected to the Trump campaign, perhaps including Trump himself. These investigations have been said, by the New York Times among others, to have involved allegations of collusion with Russia’s purported meddling in the U.S. election, and to have included “wiretapped” and “intercepted” communications. It has further been reported that the investigations traced back to the spring of 2016 and may still be continuing — i.e., the Obama administration was investigating the presidential campaign of the opposition party candidate during and after the election.

Rather than comment precisely on these reports, President Trump issued bull-in-a-china-shop-style tweets alleging something similar to, but saliently different from, what had been reported, namely: that President Obama had ordered that Trump be targeted for wiretapping at Trump Tower in New York City.

This explosive allegation implied either that (a) the Obama Justice Department had obtained a warrant from the FISA court (the secret court established under the 1978 Foreign Intelligence Surveillance Act) that specifically called for surveillance of Trump on the ground that he was an agent of a foreign power; or (b) Obama had ordered that government agencies (presumably the FBI) conduct electronic surveillance (in common parlance, “wiretapping”) on Trump without a warrant. The latter would arguably be illegal, and certainly impeachable if it had been done for political rather than national-security purposes. (Let’s not wade into the complex debate over whether the president has constitutional authority to order warrantless surveillance of communications outside the FISA procedure.)

As those who have followed our coverage here will recall, it has been the pattern of Obama officials and their sympathizers in the media to deny the narrow allegations in Trump’s tweets (viz., that Obama ordered the surveillance of Trump at Trump Tower) but to evade the broader question of whether the Obama administration investigated Trump associates connected to the Trump campaign.

This, as I discussed in a column two weeks ago, was the approach taken by former national-intelligence director James Clapper in a recent Meet the Press interview: Carefully deny Trump’s tweets (i.e., the claim that Trump himself was subjected to targeted wiretapping at Trump Tower) but sidestep the question whether there had been surveillance or other intelligence collection against Trump and associates of his who were connected to the Trump campaign. Clapper added that he was aware of no evidence that the Trump campaign had conspired with the Russian regime to influence the election — an important observation since (a) it underscored that there had been an investigation into that question (which necessarily means some aspect of the Trump campaign had been investigated by the Obama administration) and (b) it undermined the narrative that the election was somehow stolen from Hillary Clinton.

Comey narrowly denied the allegations in Trump’s tweets but would not address other investigative activity targeting Trump and his associates.

That brings us to FBI director Comey’s testimony on Monday. Like Clapper, Comey narrowly denied the allegations in Trump’s tweets but would not address other investigative tactics used to target Trump or his associates. Moreover, although Comey did not claim that there had been collusion between Trump-campaign figures and the Putin regime, he made an extraordinary acknowledgment: There is an ongoing investigation into Russian meddling in the election, including the possibility of collusion between the Kremlin and some Trump associates. Under FBI protocols, the existence of investigations should not be acknowledged, much less their subject matters and potential targets —suspicions of wrongdoing should never be publicly announced until the government is prepared formally to charge and prove them in court.

On Wednesday, Representative Nunes, the Intelligence Committee chairman, revealed that he had “seen intelligence reports that clearly show that the president-elect [Trump] and his team were, I guess, at least monitored.”

Nunes elaborated that this “monitoring” by government agencies during the Obama administration involved the “incidental collection” of intelligence, primarily during the period between November and January. He conceded that the intelligence collection appeared to be lawful but was troubled by the fact that it disclosed the identities of Trump-connected people whose communications had been intercepted. Normally, “minimization procedures” require the NSA to “mask” the identities of American citizens whose communications have been “incidentally” intercepted in the course of intelligence collection against foreign targets.

There is no contradiction between Nunes and Comey, for the reasons I laid out in the last third of a lengthy column two weekends ago. Comey was talking about whether Trump was the subject of targeted FISA surveillance. Nunes, by contrast, is claiming that Trump and/or his associates were subjected to other forms of foreign-intelligence investigation. That is why Nunes used the word “monitored.” As I explained in the column:

The question is: Did any part of the Obama administration make requests to monitor, or did it actually monitor, Trump or his associates?

I use the term “monitor” advisedly. There seems to be some linguistic gamesmanship afoot, a Jesuitical distinction between “wiretapping” and “intercepted communications.” I suspect this reflects a subtle distinction between, on the one hand, domestic FISA surveillance, and, on the other hand, the gathering of global signals intelligence (only some of which is done under FISA) conducted by the NSA.

In a nutshell, the sweep of intercepted communications collected for purposes of foreign intelligence is far broader than domestic FISA surveillance of suspected “agents of foreign powers.” The media and Democrats, after hyping for four months the notion of an aggressive investigation against Trump and his associates that included “wiretapping” and examining “intercepted conversations,” is now downplaying that very possibility. The political winds have shifted, so there’s now a perception that the investigation of a presidential campaign is a bigger scandal than “Russian-hacking” proved to be.

Consequently, the Left is now beating back reports that the Obama Justice Department 1) marched into the secret FISA court with surveillance applications targeting Trump associates, perhaps even Trump himself, on the ground that they were Russian agents; and 2) that the DOJ was eventually permitted to wiretap at least some Trump associates.

Let’s set aside the new reporting from Sara Carter and John Solomon, which maintains that the Justice Department did obtain a FISA warrant in October. It may well be that all the focus on FISA has been something of a head fake.

It is now effectively possible to target people for FISA surveillance without having to ask the FISA court for permission. There are expansive FISA orders that authorize the NSA to gather and store millions of communications that target, or merely relate to, 193 different countries. The content is accessible if it is pertinent to one of thousands of “foreign intelligence requirements” established by the president and the intelligence community, based on American security needs and national interests.

This is as it should be. It’s a dangerous world out there; hostile regimes are spying on the U.S. and seeking to undermine American interests the world over. We need aggressive foreign intelligence-gathering. But a by-product is that many Americans are caught up in the surveillance net — even Americans speaking to other Americans inside the U.S. Thousands of these conversations are captured. Most of them are never reviewed. Of those that are (because the Americans are speaking with or about foreign agents who are targeted for investigation), the NSA is supposed to “minimize” the intercepted communications in a way that “masks” the identities.

But the minimization has more holes than Swiss cheese. If the NSA decides that the identity of the American who has been incidentally intercepted must be known in order to fully understand the intelligence value of the communication, it need not be minimized. Moreover, if the attorney general concludes that an American may be acting as an agent of a foreign power, the intelligence community may use that American’s identity as a “selection term” when it searches through its trove of captured communications.

Consequently, if the intelligence agencies know that X American person is meeting with certain Russians, it can target those Russians for surveillance and “incidentally” monitor X’s communications. And if the attorney general concludes that X is an agent of a foreign power, the NSA’s database can be searched to find any of X’s intercepted communications — of which there are apt to be many. It is not necessary to get a FISA warrant naming X in order to examine X’s communications that have been swept up in foreign surveillance coverage that does not particularize targets.

In effect, it is entirely possible to conduct a “counterintelligence” investigation that quite intentionally accesses intercepted communications of an American without obtaining a FISA warrant that singles out that American for wiretapping. Consequently, the question is not merely whether Trump or his associates (or both) were the targets of FISA applications or warrants. It is whether the intelligence agencies took active steps to access and analyze their intercepted communications — whether through targeted FISA warrants, non-particularized FISA authorizations, or other foreign-intelligence-gathering streams.

Assuming that there are such intercepted conversations, as the New York Times has reported, the question is whether people in the Trump camp just happened to be incidentally monitored because they were dealing with some Russians of interest to the intelligence community, or whether they were targeted to have their communications monitored or at least analyzed after the fact.

That is still the question. Director Comey has denied that the Obama administration got a FISA warrant targeting Trump at Trump Tower. Chairman Nunes maintains that the Obama administration incidentally collected communications of people connected to the Trump campaign during the course of foreign surveillance. But neither Comey nor Nunes has addressed the two central questions: (1) Did the Obama administration take active steps to capture communications of Trump officials, whether by particularized FISA warrant or by intentionally exploiting their “incidental” intelligence-collection authority? And (2) if such active steps were taken, was it in connection with a good-faith suspicion of collusion in Russian sabotage, or was it Watergate-style political spying?

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