Rep. Nunes' charge of Trump team surveillance – why it's key

A number of former top National Security Agency (NSA) officials were standing around Friday, chatting prior to an academic conference in Washington.

Talk turned to the chairman of the House Intelligence Committee, Rep. Devin Nunes (R) of California, whose panel has been investigating Russian interference in the US election, and his charge this week that President Trump’s transition team had been subject to surveillance by US intelligence.

The charge, and the fact that Representative Nunes conveyed that information to Mr. Trump before making it available to his panel, caused a sensation after a drumbeat of testimony that there was no evidence to support Trump’s explosive accusation that he had been subjected to wiretapping at the direction of his predecessor, President Barack Obama.

None of the ex-NSA leaders could figure out what Nunes was talking about. They found his claims vague and inconsistent. They weren’t even sure what form of spying he was referring to.

“They were scratching their heads trying to figure out what was going on,” says James A. Lewis, a senior vice president at the Center for Strategic and International Studies (CSIS) and former State Department official who witnessed the discussion.

Their confusion was perhaps indicative. The Intelligence Committee chairman in recent days has roiled his own panel’s investigation, which includes looking into allegations of collusion between Russia and Trump campaign officials.

Democrats say Nunes’s actions have put the probe’s credibility in doubt.

Critics have redoubled calls for some sort of independent commission or select committee to take over the Russia issue. Nunes says he is only fulfilling his responsibilities as intelligence panel chief.

“I felt like I had a duty and an obligation” to inform the Trump administration that information dealing with some transition officials may have been “incidentally collected” by US agencies, Nunes told Sean Hannity of  Fox News Thursday night.

Request for documents

This dispute began Wednesday when Nunes held a snap press conference to announce that a source had revealed to him “dozens of reports” showing that unnamed US intelligence agencies had collected information about Trump or members of his transition team as part of their “normal foreign surveillance.”

This collection was legal, said Nunes at both his original press conference and a second availability on the White House lawn following a meeting with Trump. It was not confirmation, he said, that Trump’s tweets claiming he was wiretapped by Mr. Obama were true.

But Nunes said he was worried about the “unmasking” of names of US persons in these reports and that the development was “significant” enough to warrant his telling Trump as soon as possible.

Since then Nunes has walked back a bit from his original implications. He doesn’t have the documents in question in his possession, though he’s requested them from the NSA. He is not sure whether Trump officials were part of the conversations collected by US intelligence, or whether their names were simply mentioned by two foreign persons under US surveillance.

On Friday, Nunes declined to say how many Trump-related names had been “unmasked” in whatever documents he is talking about.

“I don’t know that yet,” he said at a press availability, saying he was waiting for the NSA to provide copies of the documents for his full perusal.

Section 702

So what’s he referring to?

Presumably, the Intelligence Committee chairman is referring to reports or other summaries of emails or phone conversations obtained by the NSA under Section 702 of the Foreign Intelligence Surveillance Act.

This law allows the NSA to listen in on foreign targets. If the foreign target happens to contact a US citizen, the NSA can still spy on the communications. That’s called “incidental collection.” But the agency has to mask the name of the American. The name can be unmasked for compelling intelligence reasons.

What we don’t know is who was talking to whom, says Mr. Lewis of CSIS. It could have been a Russian under surveillance talking to an American – Ambassador Sergey Kislyak talking to former Trump National Security Advisor Michael Flynn, for instance. Or it could have been foreigners simply talking about an American.

“My best guess is that Russian targets for collection were discussing the election and mentioned the names of some people,” says Lewis.

Why those names were unmasked would remain a question. Perhaps they were integral to the intelligence value of the conversation – it would be indicative if someone were speaking of an important Trump associate, for instance.

On Friday Nunes said he can’t figure out why the names he’s seen were not hidden. But he added that all of it appeared to be “legal surveillance” as well as “valuable intelligence.”

Raised temperature

Absent more details, it’s unclear whether Nunes has uncovered a situation that’s troubling or not. But simply by raising the charge he’s increased the political temperature of his own panel’s work.

The top Democrat on the House Intelligence Committee, Rep. Adam Schiff (D) of California, has said that the chairman’s actions have raised “profound doubt” about the panel’s ability to conduct an impartial investigation of Russian meddling. Nunes didn’t brief the committee on his findings until he’d been to the White House and held two press conferences, Representative Schiff said.

On Friday the situation became further inflamed when Nunes canceled a public hearing scheduled to feature former Director of National Intelligence James Clapper, among others. That move is meant to “choke off public info,” Schiff tweeted.

In its place the panel will hold a closed hearing with FBI director James Comey and NSA chief Adm. Mike Rogers, who testified publicly earlier in the week.

“It’s necessary to get both of them back down here before we can move onto other interviews,” Nunes said.