Weeks ago, President Trump claimed that former President Obama had "wiretapped" Trump Tower. This is not true. But the claim has prompted Rep. Devin Nunes, chair of the committee investigating Russia's role in the 2016 election and the Trump campaign, to offer what he says is evidence of some kind of surveillance at Trump Tower.
Nunes may be referring to a kind of legal, widespread collection of communications authorized by Section 702 of the Foreign Intelligence Surveillance Act. Intelligence officials are meant to "mask" the identities of Americans whose communications are swept up in this kind of surveillance, but there are many loopholes -- and Nunes appears to be concerned that Trump associates were improperly "unmasked."
Elizabeth Goitein is co-director of the Liberty and National Security Program at the Brennan Center for Justice at NYU. She talks to Bob about how Section 702 is back in the spotlight -- and how Nunes' concern about the law contrasts with his support of it in the past.
BOB GARFIELD: From WNYC in New York, this is On the Media. Brooke Gladstone is away this week. I’m Bob Garfield.
[MUSIC UP & UNDER]
And this is Chairman of the House Intelligence Committee Devin Nunes.
REP. DEVIN NUNES: Today I briefed the President on the concerns that I had about incidental collection and how it relates to President-elect Trump and his transition team.
BOB GARFIELD: Yikes! This is what they mean by the term “highly irregular.” For starters, it is the Congress with the oversight authority over the Executive Branch, not vice versa. Why would Nunes be briefing the President about Committee activities? Why, especially, would he be briefing the central figure in the Committee's investigation into Russian interference of the 2016 election? The answer to that is Nunes, a Trump backer, believed he had new information to bolster the White House claim that Barack Obama had bugged Trump Tower. That accusation had come in a notorious presidential tweet three weeks ago.
MAN READING TRUMP TWEET: “How low has President Obama gone to tapp(sic) my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!”
BOB GARFIELD: This week had begun, of course, at Nunes’s committee hearing with FBI director James Comey calling Trump’s allegation “hogwash.”
FBI DIRECTOR JAMES COMEY: I have no information that supports those tweets.
BOB GARFIELD: Whereupon Trump and his spokesman, Sean Spicer, came back with, okay, maybe not “wiretapped” wiretapped but under surveillance. Nunes's big scoop, which he raced to share with the White House without even briefing his Democratic colleagues on the Committee, was that communications of Trump campaign staffers were, indeed, found in routine intercepts of foreign intelligence targets and their names carelessly bandied about the spooky sphere.
REP. NUNES: Details about US persons associated with the incoming administration, details with little or no apparent foreign intelligence value were widely disseminated in intelligence community reporting. I want to be clear, none of this surveillance was related to Russia or the investigation of Russian activities or of the Trump team.
BOB GARFIELD: So no, no wiretap and no, no Obama fingerprints and no, no targeting of Trump associates but, still, evidence that the President was kinda, sorta on the right track. As we shall see in a moment, there may be good reason for outrage about what is called the “unmasking of Americans incidentally caught up in vast sweeps of foreign targets.”
But this gets to the week’s highest irregularity of all. Nunes is irate that American citizens could have their privacy and reputations so violated, through literally unwarranted surveillance, yet, the Chairman himself has been a tireless advocate for precisely the laws that permit it, especially a passage in the Foreign Intelligence Surveillance Act called Section 702. Let's listen again to Nunes’s terminology.
REP. NUNES: Today I briefed the President on the concerns that I had about incidental collection and how it…
ELIZABETH GOITEIN: Incidental collection is when Americans’ communications are picked up in the course of conducting surveillance of a foreign target.
BOB GARFIELD: Liza Goitein is co-director of the Liberty and National Security program at the Brennan Center for Justice at NYU. Incidental collection, she says, is the inevitable result when scads of messages to and from foreign subjects are hoovered into the Intel cloud, no warrant necessary, as authorized by Section 702.
ELIZABETH GOITEIN: So the way it works now, any foreigner overseas is fair game, regardless of whether either the foreigner or the American with whom the foreigner is communicating is suspected of any wrongdoing. And that really opens the door to mass surveillance. So what we saw in 2011, anyway, is that there were 250 million Internet communications that were picked up under this authority.
BOB GARFIELD: So in order to avoid spying on Americans, the government is supposed to mask the identities of those millions incidentally surveilled. But under the Nunes theory, Trump aides like Michael Flynn were unmasked and subsequently exposed through leaks.
ELIZABETH GOITEIN: And I think what Nunes was saying here was that the information was lawfully collected, presumably the target was not an American, assuming that this happened under Section 702, but that the information about the Americans, in this case, the Trump aides, was not properly minimized.
The government is supposed to mask or delete the Americans’ information after the government gets it, but there are numerous, numerous exceptions to that rule. And, in fact, routinely the NSA, the FBI, the CIA, they keep this data, Americans’ communications, for years. And they can use it in all kinds of ways, in criminal investigations, as well as national security investigations. And there are also many exceptions to the requirement that they mask the identities of the Americans before they share that information.
BOB GARFIELD: The other astonishing aspect of this episode is that Nunes is suddenly so upset about the misuse of Section 702.
ELIZABETH GOITEIN: Yes, Nunes has been a staunch champion of Section 702.
REP. NUNES: We need to educate members of Congress on the importance of reauthorization of Section 702 of the Foreign Intelligence Surveillance Act.
ELIZABETH GOITEIN: He voted for Section 702 in 2008. He voted to reauthorize it in 2012. Representatives Massie and Lofgren offered an amendment that would have required a warrant for the government to search through Section 702 data for Americans’ information. He wrote a letter to his colleagues saying how important it was to oppose the amendment and leave Section 702 the way it was. And I think that's causing a bit of cognitive dissonance for him now, as he tries [LAUGHS] to support the Trump administration. He clearly has known all along what Section 702 does and what it's about, so that's why he is trying to somehow be critical of the surveillance that happened under the law without actually being critical of the law.
BOB GARFIELD: Now, back to the particulars, here’s Congressman Mike Lee of the Utah Republican, the libertarian, speaking on Monday about the very nature of the wire tap that Trump alleged.
REP. MIKE LEE: President Trump might have been referring to something else, perhaps an order issued pursuant to Section 702 of the FISA amendments, one that was aimed at an operative of a foreign government but incidentally brought in communications involving US citizens, some of whom perhaps might have been affiliated with the Trump campaign, I don't know.
BOB GARFIELD: And the President himself on Wednesday said, oh yeah, yeah, that’s exactly what I was doing. I meant “wire tapping,” not wiretapping. I wonder if, actually, their explanation is correct?
ELIZABETH GOITEIN: Sure, I mean, I think the problem with Trump’s tweet was that, you know, he was implying that President Obama personally, you know, ordered the surveillance, which wouldn't be legal, and that there was a physical wiretap of his personal phones, which suggest that he personally was targeted. These things are not true. But I, frankly, would have been quite surprised if I had learned that there was no surveillance that picked up communications of Trump’s aides. The Trump transition team was routinely communicating with foreign officials, in fact, probably a little more than a transition team [LAUGHS] should be doing. And picking up foreign officials’ communications is what the NSA does, whether those officials are friends or foe. So it would have been a real surprise to me to learn that there was no information about Trump’s campaign aides anywhere within the NSA's databases.
BOB GARFIELD: This seems like kind of an arcane subject for innards of a complex statute but, you know, [LAUGHS] you'd be forgiven for thinking that the Intelligence Committee hearing in the House on Monday was convened not to discuss the Russia investigation but Section 702, itself.
REP. MIKE TURNER: Admiral Rogers, I'm going to begin with a question to you concerning the Foreign Intelligence Surveillance Act.
MAN: FISA Section 702.
MAN: That’s 702.
MAN: Section 702 under the Foreign Intelligence Surveillance Act.
ELIZABETH GOITEIN: There’s been a focus in general in the House on Section 702, which is scheduled to expire at the end of this year, unless it's reauthorized. And there was a hearing in the House Judiciary Committee on March 1st, at which I testified. There was a tremendous amount of interest in how it’s actually affecting Americans, how the communications that are pulled in can be used against Americans. There was a classified panel, which I was not there for that, but it went on for three hours, and I was told that all 30 members were in attendance.
BOB GARFIELD: You’ve been getting calls from whom all week?
ELIZABETH GOITEIN: Oh, I, I’ve gotten calls from reporters at conservative outlets. I appeared on FOXBusiness.
LISA KENNEDY MONTGOMERY: Whether the president is right or wrong on the wiretapping claims, it has ignited a much-needed debate on personal privacy and government spying on its citizens. Elizabeth Goitein joins me. She’s co-director of…
ELIZABETH GOITEIN: This is definitely a topic that's of major interest now to conservatives, and I welcome that.
BOB GARFIELD: Right, if anyone had said to you, had said, Liza, once Trump is the president, we’re gonna get rid of this Section 702, once and for all, tell me –
- tell me what you would have said?
ELIZABETH GOITEIN: I would have been startled. [LAUGHS] I, I think that the people in the civil liberties community who have been working on this issue for a very long time pretty much thought that the prospects for 702 reform had taken a bit of a nosedive with the election of President Trump.
I would say that there are a lot of mainstream conservatives who voted for Section 702 and voted to reauthorize it, without really knowing what was in it. A lot of members probably really didn't understand what the implications were for Americans, so I think what we’re seeing is just a shift in understanding and a shift in attitude toward the statute and what it can do.
BOB GARFIELD: You mean now that what is good for the goose has been shown to be good for the gander.
ELIZABETH GOITEIN: Exactly. There's no evidence right now that any abuse has actually happened in this case, but the potential is there, and that's the problem. We shouldn't have to wonder or guess whether the government is going too far in its surveillance of Americans. The law should be very clear that the government needs a warrant in order to access Americans’ communications and that surveillance of foreigners should only happen in cases where there is some potential threat to our country or our interest. So, in some ways, these crazy tweets have done us a favor because they've really rejuvenated this issue, and rightly so.
BOB GARFIELD: Liza, thank you.
ELIZABETH GOITEIN: Thank you.
BOB GARFIELD: Liza Goitein is co-director of the Liberty and National Security program at the Brennan Center for Justice at NYU.
[MUSIC UP & UNDER]
Coming up, North Korea is on the warpath and we are doomed - or not. This is On the Media.