Tucker Carlson’s Dangerous Game

Having written about Sean Hannity on Monday, I am loath to return so quickly to the well of Fox News Channel, but Tucker Carlson is playing a dangerous game.  I refer to this:

You can view a longer version of the clip, which makes clear that the “monitoring” to which he refers is really the alleged “unmasking” of individuals connected to the Donald Trump transition and campaign in intelligence reports, allegedly by former Obama national security adviser Susan Rice. (Why Fox would take Carlson slightly out of context on Twitter is anyone’s guess.)

However, the materials Carlson refers to were, as far as anyone knows, “incidental collection,” i.e., instances in which a foreign person or agent properly targeted for surveillance speaks to a U.S. person.  Indeed, when House Intelligence Chair Devin Nunes initially made the unmasking claim public, he stated that “on numerous occasions, the intelligence community incidentally collected information about U.S. citizens involved in the Trump transition.”

Conflating the collection of surveillance intelligence (including incidental collection) with the subsequent analysis or dissemination of that material, as Carlson does here, misleads people into thinking the intelligence was collected improperly.

This is not hypothetical.  I have had people interpret and defend Carlson’s remarks as suggesting that Obama had intelligence agencies target foreign persons or agents in order to monitor the conversations of Trump and his team.

There is a term — or euphemism — for this charge: “reverse-targeting.”  It’s illegal.  There is currently no evidence that reverse-targeting occurred in this case.  Indeed, Nunes was specifically asked whether this material could be the result of reverse-targeting and he replied that didn’t know.

In the past, Edward Snowden has claimed that many DNI analysts at NSA engaged in reverse-targeting.  OTOH, Edward Snowden is a Russian stooge hiding from justice and thus unlikely to say much that does not advance the interests of his handlers.

In addition, Sen. Rand Paul, while doubting that Trump was targeted for surveillance, suggested that he might have been the subject of a “backdoor search,” which is not reverse-targeting, but a different form of improper usage of properly collected surveillance of foreign persons or agents.

At that time, Paul claimed that Pres. Obama had been the subject of such improper searches 1,227 times, which turns out to be a misleading reference to the number of times Obama was mentioned by others (in unmasked but obviously identifiable form) in communications.

Paul has also accused Susan Rice of having conducted the “backdoor searches” without any evidence to back his claim.  And when he got called on it, he tap-danced.

These days, cases of reverse-targeting are rare, generally inadvertent, and reported pursuant to current law.  (Such was not always necessarily the case.)  These reports also address the implementation of “minimization” (masking) procedures.

This lack of evidence of improper surveillance of Trump & Co., incidentally, is why people arguing that Obama spied on Trump resort to listing the Obama’s other bad acts involving surveillance.

In general, evidence of prior bad acts is not good evidence that the person or group involved committed a particular current bad act.  I could explain why this is generally true in law, but let’s skip right to an example politics and the court of public opinion.

I have previously noted that partisan Democrats once pursued nutty investigations of whether George H. W. Bush flew in an SR-71 Blackbird jet to Paris to interfere with the Iranian hostage negotiations, and whether he was involved in drug-running with the Contras in Nicaragua.  Those allegations are made no less nutty by the fact that there was an actual Iran-Contra scandal when George H. W. Bush was Vice-President.  And they are no less nutty because he used to run the CIA.

In the current climate, my favorite part of the “bad acts” argument is the Right’s strange new concern that the CIA allegedly spied on Democratic Senate Intelligence Committee staffers who were investigating the CIA’s handling of the torture issue during the Bush Administration.  The GOP — and most conservatives — were uninterested in this story at the time because they thought Sen. Dianne Feinstein’s investigation was a political witch hunt.  But now the Obama administration is to be blamed for defending the CIA’s attempt to fend it off on their own system.  OK.

So why is any of this a big deal?  After all, isn’t this whole subject murky and confusing?  There are at least two answers to this question.

First, at the crass political level, conflating issues of surveillance with issues of analysis or usage merely gives Democrats and the establishment media license to do the same in order to distract from the accusation that Rice engaged in improper unmasking, which is potentially quite serious (for what it’s worth, which isn’t much, Rice denies the accusation, though her general lack of credibility is not proof of culpability).

As David French notes, we really don’t know enough yet to be forming solid opinions on whether Rice acted improperly.  My quibble with French’s piece is that he uses Russia as an example and the materials at issue here ostensibly did not involve Russia. (John Schindler provides a hypothetical intelligence report that’s much simpler and likely more pertinent to the current controversy.)

Second, on a more serious level, note the point raised early on by Andrew McCarthy in considering the mere possibility of reverse-targeting.  He observed that the pre-9/11 “wall” between law enforcement and intelligence investigators made it difficult to share information and thus effectively investigate or prevent terror attacks.

The Privacy and Civil Liberties Oversight Board —a bipartisan panel in the executive branch that reviews the executive branch’s surveillance actions and also monitors civil liberty concerns — has found the sort of post-9/11 electronic surveillance at issue here “makes a substantial contribution to the government’s efforts to learn about the membership, goals, and activities of international terrorist organizations, and to prevent acts of terrorism from coming to fruition.”

To be sure, we should be concerned about the potential for abuse of these surveillance programs.  But we should be very careful that any reforms we make address actual abuses of civil liberties, not imagined ones, before deciding to risk losing the value these programs provide.

Carlson, and Paul for that matter, thus potentially do the public a great disservice by conflating surveillance with analysis/unmasking (and dissemination and leaking) to advance their partisan or ideological agendas.  A misinformed public may be persuaded to demand reforms of the law that not only do not address the potential problem seen so far in this controversy, but also cures that may be worse than the disease.

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Donald Trump and the Sleaze Factor

Most of yesterday’s buzz was about the miasma of Trump investigations.  There was a flap over whether the Justice Department sought to prevent former Acting Attorney General Sally Yates from testifying in the House Intelligence Committee’s investigation into Russian interference in the presidential election.

Recall that to date, there appears to be no public evidence that Trump associates’ contacts with possible Russian agents involved wrongdoing (though there are some odd transactions in the past of Trump’s one-time campaign manager, Paul Manafort).

There is also a flap over the committee’s chairman, Devin Nunes, refusing to disclose to the committee who gave him intelligence reports that indicated Pres. Trump and his associates may have been ensnared in incidental intelligence collection outside the probe into the Russia-related issues.

Recall that to date, there appears to be no public evidence to substantiate Nunes’s claim this intelligence was improperly circulated without redacting the names of Trump and his associates in cases where the names were of no intelligence value.

In recent days, I have noted the tendency to treat similarly unsupported claims as Very Big Deals by anti-Trumpers and anti-anti-Trumpers, according to their confirmation biases.  I have also noted that there is a certain sort of partisan fever that drives people to give way too much credit to even nutty conspiracy theories.

Today, I simply want to add that the odds are that none of it may matter much.

Consider that Ronald Reagan got dubbed “the Teflon President” by Rep. Patricia Schroeder on the basis of her list of 225 Reagan administration personnel or nominees who were the subject of allegations of ethical infractions.  It led Dems to claim the Reagan administration had a “sleaze factor.”  The Associated Press drily noted: “The figure has been disputed.  Most were never charged with any wrongdoing, although some nominees didn’t get jobs after the alleged transgressions came to light.”

That didn’t stop the more sober Washington Post from claiming a list of 110 senior administration officials have been accused of unethical or illegal conduct from 1981-86.  Even so, some of the biggest accusations, such as those against Labor Secretary Ray Donovan, fizzled.  The major convictions would mostly come during the Iran-Contra scandal in Reagan’s second term (and some of those would be reversed due to grants of immunity issued in the Congressional investigation).

None of the earlier Reagan-era scandals and pseudo-scandals (which were in large part a function of the then-new standards of the Ethics in Government Act) mattered in the grand scheme because they didn’t touch the President personally and — tbh — people simply don’t care as much about scandals when the economy is doing well (see also: Clinton, Bill).

Based on what we know to date, I would expect the same basic rules to apply here.  Both stories so far look like pseudo-scandals not involving either Pres. Trump or Obama directly.  And if the economy picks up as the GOP hopes, few outside the partisan fever swamps will care much.

As such, the anti-Trumpers are likely just spinning their wheels until some investigation with credibility delivers some evidence bearing on whether Trump associates behaved badly.  And the anti-anti-Trumpers are in the same boat regarding Nunes’s claims.  The latter, however, also carry a whiff of the people who are constantly complaining that the establishment media isn’t covering their pet story enough. Sad!

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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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Reaping News

According to a new Harvard-Harris Poll, 59 percent of Republicans say they believe Pres. Trump’s claim that fmr. Pres. Obama wiretapped Trump Tower.  That claim has been rejected by FBI Dir. James Comey, as well as many GOP leaders in Congress.  Similarly, NSA Dir. Michael Rogers has rejected Trump’s claim that Obama asked British intelligence (GCHQ) to conduct surveillance on Trump.  Overall, 66 percent of registered voters reject the claim.

Trump and White House spox Sean Spicer relied on Fox News Channel pundit Judge Andrew Napolitano to justify their claim about GCHQ.  Napolitano had managed to mangle an already dubious claim by wacky CIA analyst-turned-blogger Larry Johnson on RT, the “news” channel funded by the Russian government.

The “news” side of Fox, including anchors Shepard Smith and Bret Baier, tried to distance itself from the ensuing international spat.  Napolitano was indefinitely suspended from FNC over the flap.  Cynics linked the suspension of Napolitano to the backlash the baseless claim could have on Fox News honcho Rupert Murdoch’s proposed deal to purchase Sky News in the UK.

The cynics are finding more ammo in yesterday’s editorial from the Murdoch-affiliated Wall Street Journal, which said of the wiretap claims that “the President clings to his assertion like a drunk to an empty gin bottle” and warned that “he needs support beyond the Breitbart cheering section that will excuse anything. As he is learning with the health-care bill, Mr. Trump needs partners in his own party to pass his agenda. He also needs friends abroad who are willing to trust him when he asks for support, not least in a crisis.”

It’s hard to discount the cynics in light of prior reports that Murdoch was much involved in directing the tone of Fox’s Trump programming, both when it was tough and when it turned soft.  And reports that there have been tensions within the WSJ’s newsroom over its Trump coverage.

Indeed, it’s a little rich to see the WSJ condemning the “Breitbart cheering section” while ignoring Sean Hannity wildly shaking his pom-poms for Trump from Murdoch’s sidecar.

The WSJ is right to be concerned about Trump’s credibility.  One hopes conservative media might take the moment to consider how much they are linking theirs to his, and how it affects the public discourse.

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