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The Republican Hypocrisy on Surveillance, Leaks, and Snowden

Congressman Devin Nunes is apparently fine with revealing classified information as long as it helps Donald Trump.

by Marcy Wheeler
Mar 23 2017, 3:48pm

Around lunch on Wednesday, House Intelligence Committee chair Devin Nunes held a press conference at the Capitol during which he exposed government surveillance, in the process appearing to reveal classified information, potentially violating the Espionage Act, and compromising the sort of operation he has long championed.

Nunes, a Republican, described sources reaching out to him with information showing that after the election but before Donald Trump took office, a number of Trump associates had been "incidentally" (and legally) monitored by American intelligence agencies, who then widely disseminated their names within the intelligence community.

"Incidental collection" is spook-speak to describe what happens when Americans communicate with people who are "targeted" for surveillance. In the case of foreign intelligence spying, the government can only target someone inside the United States who is an "agent of a foreign power," which can include things like ambassadors, actual spies, or corporate entities working for a foreign country. Unless an American is a spy working for a foreign government or a terrorist affiliate, the government shouldn't be able to collect all of his or her communications, at least in theory.

But whenever the government collects information on a target, it gets both sides of the conversation: the foreign agent—a diplomat, for example—and whatever potentially innocent person he or she is speaking with. The people reading those communications get to read both sides, including the innocent American's side, without a warrant. They even get to go back and conduct searches on Americans who get collected in such a fashion if there's a good reason for it. And if the American's side of the conversation is important to understanding that communication, their identity can be disclosed in reports, which is called "unmasking."

In a story in February, the Washington Post disclosed that the government had picked up the comments of then national security adviser Michael Flynn in just such an "incidental" fashion. He had been talking to Russia's ambassador to the US, Sergey Kislyak. Because Flynn's identity was important to explaining why Russia responded in unexpected fashion to sanctions imposed in December, the intelligence community unmasked his name, discovering that Trump's top national security adviser had assured Russia that the incoming administration would address the sanctions after taking power. The disclosure of these conversations—and Flynn's prevarications about them to the press and Vice President Mike Pence—led to his resignation.

Unmasking does not mean that people's names become public. Republicans have been wailing, with good reason, that the content and participants of secret Foreign Intelligence Surveillance Act (FISA) intercepts got leaked to the press. That's one of the things all this secrecy is designed to prevent.

Now we know—thanks to Nunes's blabbing—that additional Trump associates' communications have been incidentally collected and their identities unmasked—and not just those speaking to Russians.

The Republican congressman's statements raise a lot of questions. Among them: Which Trump transition officials were incidentally monitored? Who were they speaking to? Was there anything nefarious about these conversations? Why were their names unmasked? But also: Did Nunes just break the law?

Nunes himself admitted "it's all classified information," when reporters asked him for more detail. "Representative Nunes' statements would appear to reveal classified information, which is a serious concern," Democratic senator Ron Wyden said in a statement.

"Until it's properly declassified, the existence of a FISA warrant (to say nothing of the warrant itself) is classified," University of Texas professor of law Steve Vladeck told me. "Unless Representative Nunes had authority publicly to disclose the existence of these warrants (and there's no indication he did), then he revealed classified information to those not entitled to receive it—a textbook violation of part of the Espionage Act." If Vladeck's read is correct, then Nunes violated the Espionage Act to expose details about a spying program.

It's particularly crazy that Nunes would leak classified information like this, because he watched on Monday as his own Republican colleagues spent much of an Intelligence Committee hearing emphasizing what a betrayal of trust it was to reveal that Americans' identities had been unmasked in surveillance. "Would leaking of a US person who has been unmasked and disseminated by intelligence community officials, would that leaking hurt or help our ability to conduct national security?" Congressman Tom Rooney asked Mike Rogers, the director of national security agency admiral.

Rogers confirmed that leaks of the sort Nunes engaged in today hurt national security. Rooney further described the secrecy around this topic to be a "sacred trust." Congressman Trey Gowdy repeatedly called such disclosures "felonious leaking."

There are ways for someone like Nunes to release classified information in the public interest—but it involves going to the full intelligence committee first. Congressman Adam Schiff, the Democratic ranking member on the Intelligence Committee, made it clear this did not happen. "This information should have been shared with members of the committee, but it has not been," he said in a statement. (On Thursday morning, Nunes reportedly apologized to fellow committee members.)

Now, Nunes actually has a point. There are precious few protections for Americans who get sucked up in NSA or FBI's foreign intelligence dragnet. As in the case of Flynn, their conversations can be shared through the government without any kind of warrant. In a response to a question about whether this incidental collection constituted spying, Nunes explained, "I guess it all depends on one's definition of spying. Clearly it bothers me enough, I'm not comfortable with it."

Of course, this is a very new discomfort on Nunes's part. He has long championed such spying against people he didn't know personally. In a letter opposing an effort to rein in direct access to such "incidentally" collected communications from Americans in 2014, for example, Nunes insisted that the intelligence community had to retain such direct access because "communications between individual foreign intelligence targets and [Americans] can have significant intelligence value."

As recently as December, Nunes called Edward Snowden a traitor for leaking details of (among other things) how the NSA spies on Americans. "Edward Snowden is no hero—he's a traitor who willfully betrayed his colleagues and his country," Nunes said in a release accompanying the committee's factually flawed report on Snowden.

But Wednesday, Nunes did just what Snowden had: expose classified information about foreign intelligence surveillance out of a concern for its impact on Americans.

Of course, when Snowden leaked, he did so because he was concerned about the privacy of Americans in general. Nunes leaked his classified information out of a concern solely for his close associates: Donald Trump, on whose transition team Nunes served, and his associates. It was at least partially an effort to retroactively validate Trump's ridiculous claim of being "wiretapped" by Barack Obama; there is no principle at stake here other than covering your boss's ass.

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More broadly, Republicans like Gowdy and Rooney appear concerned about leaks like those that took down Flynn because they'll lead Americans—and other members of Congress—to oppose the reauthorization of surveillance programs due to be reupped this year. Rooney said that leaks about incidentally collected communications of Americans might prevent the reauthorization of Section 702, a part of FISA that leads to significant incidental collection. At Monday's hearing, Rooney told Rogers, "It's really going to hurt the people on this committee and you in the intelligence community when we try to retain this tool this year and try to convince some of our colleagues that this is really important for national security when somebody in the intelligence community says, 'You know what the hell with it, I'm gonna release this person's name, because I'm gonna get something out of it.'"

Privacy advocates have already seized on Nunes's double standard—arguing Nunes should fight for all Americans' privacy, not just those of Trump's close associates. "Congress should focus on protecting average Americans harmed by warrantless incidental collection under Section 702, not just when FISA affects the Trump transition team," Constitution Project senior Counsel Jake Laperruque told me.

At the very least, Nunes should drop his double standards on leaks in the public interest. He has accused others of treachery for trying to expose expansive spying on Americans. Yet when it came to protecting his former colleagues on Trump's transition team, he felt fine leaking details about FISA intercepts to the press.

Marcy Wheeler is an independent journalist covering national security. Follow her on Twitter and on her website.

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