Trump, Surveillance, Leaks, Hysteria

Partisanship has a way of coloring views of the news, especially of highly-charged stories involving Trump campaign and transition officials turning up in government surveillance.

This week, CNN reported: “The FBI has information that indicates associates of President Donald Trump communicated with suspected Russian operatives to possibly coordinate the release of information damaging to Hillary Clinton’s campaign, US officials told CNN.”

Righties, particularly those of the anti-anti-Trump bent, focuses on the “supposed” and the “possibly” to conclude the story was No Big Deal.  The story is certainly qualified, but the dismissal tends to ignore the fact that it’s a report on an ongoing investigation and that unless some sort of charge is brought, it’s a fair bet the evidence will be below the level needed to bring charges.

Conversely, the same basic group of righties thought this week’s press event by Rep. Devin Nunes — chairman of the House Intelligence Committee — (helpfully transcribed by Lawfare) was a Very Big Deal.

Nunes initially claimed that: “on numerous occasions, the intelligence community incidentally collected information about U.S. citizens involved in the Trump transition.  Details about persons associated with the incoming administration, details with little apparent foreign intelligence value were widely disseminated in intelligence community reporting.  Third, I have confirmed that additional names of Trump transition team members were unmasked. And fourth and finally, I want to be clear, none of this surveillance was related to Russia, or the investigation of Russian activities, or of the Trump team.”

He added that the collection itself appeared to have been legal (i.e., were likely part of conversations of or with foreign surveillance targets), which casts doubt on the claim reported by Fox News that documents may show the Obama administration was using the cover of legitimate surveillance on foreign targets to spy on President-elect Trump (unless your definition of “spy” is incredibly broad).

Also, as noted by the Lawfare bloggers: “In his initial statement, [Nunes] makes what seem to be bold and unequivocal claims, but he then spends the question and answer period significantly undercutting several of them.”  Indeed, Nunes now says he does not know “for sure” whether Trump or members of his transition team were on the phone calls or other communications at issue.

It’s odd that the same people who relied on qualifiers to proclaim the CNN story to be No Big Deal overlook the contradictions and ambiguities in the Nunes claims to deem them a Very Big Deal.  By which I mean not odd at all if you can hear the the tribal beating of partisan drums in the background.

Nunes, however, further raises the serious allegation that Trump or members of his transition team were “unmasked” (i.e., their identities were not redacted as would usually be the case for U.S. citizens in cases of incidental collection) in cases without foreign intelligence value, and that said reports were widely disseminated.  This is precisely the concern civil libertarians have raised about our foreign surveillance efforts during the post-9/11 era.

FWIW, Rep. Adam Schiff, ranking Dem on the House Intelligence Committee, claims Nunes told him most of the names at issue were masked, but that Nunes claimed he could still figure out the likely identities of the people involved.  The resolution of that question of fact will be significant.  The closer Schiff is to being right, the less likely that the “smoking gun” suggested by Fox News sources will be found.

Nevertheless, this claim is consistent with what I thought was a very odd March 1 New York Times story that reported: “In the Obama administration’s last days, some White House officials scrambled to spread information about Russian efforts to undermine the presidential election — and about possible contacts between associates of President-elect Donald J. Trump and Russians — across the government.  Former American officials say they had two aims: to ensure that such meddling isn’t duplicated in future American or European elections, and to leave a clear trail of intelligence for government investigators.”

Note: The Nunes claims do not involve Russia, but the notion of widely spreading sensitive material regarding the Trump camp is a common theme.

I found the NYT story odd because it is essentially an unfavorable admission by the leakers, raising the question of why they would want this dispersion effort made public.  Stupidity and hubris can never be ruled out.  But there is another possibility.

It could be that the leakers wanted this brazen taunt in print precisely to provoke a reaction.  They may have thought Trump might be goaded into tweeting about it, and every news cycle consumed with stories that Trump associates were picked up in foreign surveillance is a bad one for Trump, because most don’t follow this story closely and the center-left media isn’t going to put a neutral or pro-Trump spin on the coverage.

Trump didn’t tweet about it, but it may have caused people to come forward with the documents that caused Nunes to go public (and then to the White House before consulting the Committee).  The leakers admit they want investigators to find the material they dispersed.   And so long as the general gist of the story from the media is that people in Trump’s camp were under some sort of cloud, the leakers may be quietly happy with Nunes, especially if it turns out he exaggerated.

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