4 Reasons Devin Nunes’s Stunt Created More of A Mess

House Intelligence Committee Chairman Devin Nunes held a press conference today before announcing he was running off to the White House to tell the President what he learned. Here is the story from Politico:

Nunes said the monitoring appeared to be done legally as a result of what’s called “incidental collection,” but said he was concerned because it was not related to the FBI’s investigation into Russia’s meddling in the election and was widely disseminated across the intelligence community.

“I have seen intelligence reports that clearly show that the president-elect and his team were, I guess, at least monitored,” Nunes told reporters. “It looks to me like it was all legally collected, but it was essentially a lot of information on the president-elect and his transition team and what they were doing.”

Nunes described the surveillance as most likely being “incidental collection.” This can occur when a person inside the United States communicates with a foreign target of U.S. surveillance. In such cases, the identities of U.S. citizens are supposed to be kept secret — but can be “unmasked” by intelligence officials under certain circumstances.

Nunes created a firestorm with this information because it led to all manner of speculation and incorrect information being bandied about on social media. Nothing helpful came from what he did, despite protests to the contrary. In the end, it looks like nothing more than Nunes giving cover to the Trump administration after the hearings on Monday went very badly for them.

In that vein, here are four reasons why this little stunt by Nunes just created an even bigger mess than before.

1. There was no purpose for releasing the information in question – Nunes said it was all “legally collected.” But he also notes there was information in the reports about the transition team. Do you know who was on Trump’s transition team? Devin Nunes. Also, he held the press conference and provided the information he received without giving it to fellow members of the Intelligence Committee. That comes off as highly irresponsible on his part. Finally, the Intelligence Committee is an oversight committee. The intelligence community is headed up by the executive branch of government and yet here was the Chairman of the committee that has oversight over the executive branch, skipping off to the White House to inform the President of information he had before other members of the committee. Jeremy Bash, a former counsel to the Intelligence Committee, had this to say:

Ex-House Intel counsel: Nunes briefing Trump is a “breakdown in the entire oversight process,” other committee members likely “horrified” pic.twitter.com/aRn8dB3Ia6

— Bradd Jaffy (@BraddJaffy) March 22, 2017

2. Saying the Trump team was placed under surveillance, wiretapped or spied on is not correct – Words mean something and the word “incidental” is key here. Attorney Gabriel Malor said the following:

“Incidental collection” is when communications by U.S. citizens are intercepted bc they went *to* a foreign surveillance target.

— Gabriel Malor (@gabrielmalor) March 22, 2017

Incidental collection under FISA sec. 702 has repeatedly been upheld as constitutional. https://t.co/11fpmdALUI

— Gabriel Malor (@gabrielmalor) March 22, 2017

Nunes said he didn’t see evidence anyone was conducting surveillance on the Trump team. So everybody saying, “The Trump transition team was spied on!” are not correct. Use a personal example. Say you have a friend who works in a pizzeria. You call that friend on the phone to ask about plans for the weekend. Unbeknownst to you and your friend, the owner of the pizzeria, is under a federal investigation for money laundering. Your conversation is collected as a result. It doesn’t mean you were spied on nor does it say that you were placed under surveillance.

More from John Schindler:

“Incidental collection” is not surveillance if you’re not a SIGINT target. I’ve explained this too many times already. So did DIRNSA Monday.

— John Schindler (@20committee) March 22, 2017

It means Team Trump was in contact with legitimate FI targets who were being monitored totally legally via SIGINT.https://t.co/0Xb9cVSrTM

— John Schindler (@20committee) March 22, 2017

3. Contrary to what a lot of people are saying the “unmasking” of people in these reports is not illegal. – For those that aren’t sure, when a U.S. intelligence agency conducts surveillance of a foreigner inside the U.S., it will sometimes include the name of an American that the foreigner is speaking to or about. When it happens, analysts hide or “minimize” the name of the American in question. People all over are saying the “unmasking” of Michael Flynn was illegal. That is not true. The leaking of his name was unlawful. One national security expert and lawyer confirm the legality of unmasking. The nat/sec expert I spoke to said the following:

Unmasking is a normal, if pretty rare, IC procedure….unmasking within classified channels is SOP — the LEAK was the illegal part

Benjamin Wittes of the Brookings Institute answers the question: 

“There is nothing inappropriate about unmasking when it is appropriate to unmask,” said Benjamin Wittes, a senior Brookings Institution fellow and editor-in-chief of the Lawfare blog.

In the context of the Flynn example, Wittes said, the U.S. is surveilling a foreign target — in this case Russian Ambassador to the U.S. Sergey Kislyak. The target, Kislyak, is contacted by an American who is the incoming national security adviser in the new administration — Michael Flynn — and that American is discussing the future administration’s policy.

Wittes says it is easy to see where identifying this American is important to foreign intelligence.

“I don’t think there’s anything surprising that it got unmasked,” Wittes said.

What is at issue is the leaking of the name to the public:

The “unmasking” of Flynn’s name is routine, Wittes said. But, he said, sharing Flynn’s name publicly “is both shocking and inappropriate.”

It is a crime to disclose or “leak” classified information. The contents of intelligence collected under the authorities of the Foreign Intelligence Surveillance Act, or FISA, are classified. Flynn’s conversation with Kislyak was collected under these authorities and therefore classified.

Even Sean Spicer recognizes the different. In a statement about Flynn, he said the following:

“Michael Flynn was unmasked and then illegally, his identity was leaked out to media outlets,” White House spokesman Sean Spicer said Monday.

4. It gives Donald Trump and his supporters to say he was right about his screwball tweets from two weeks ago – Sure enough, when I tweeted that’s what Nunes stunt would do, I was met with “And he’s right!” replies. Naturally, Trump is not correct, but it doesn’t matter. It goes back to what I said about driving to Philadelphia. If I drove instead to Baltimore, I could say my claim was “right” because I was driving north. It is SOP for Trump make an outrageous claim and then claim vindication when some entirely unrelated information is tied back to what he said. It’s garbage.

Bradley Moss, an attorney, specializing in national security issues tweeted the following:

The number of people in my TL right now saying Trump’s claims were accurate is astounding. His accusations were way off mark.

— Bradley P. Moss, Esq (@BradMossEsq) March 22, 2017

This charade will continue until there is an independent investigation carried out. What Nunes did was a disgrace and an embarrassment to the Republican Party. What he did was not in the best interests of the public but the best interest of Donald Trump.

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