Claims of inadvertent U.S. surveillance on Trump transition team raise questions

Reporting from Washington —  The disclosure by Rep. Devin Nunes (R-Tulare), chairman of the House Intelligence Committee, that communications by Trump transition members were inadvertently picked up by U.S. surveillance legally collecting foreign intelligence raises questions that are likely to consume Congress and the White House for months.

Among them:

Who in the Trump transition team was captured by the surveillance? That’s not clear. Nunes gave no names other than to say it was possible that then-President-elect Trump might have been mentioned in classified intelligence reports written at the time. Numerous transition officials could have communicated with foreign ambassadors or others in the United States who were under court-authorized surveillance for counterintelligence purposes — and thus inadvertently had their communications monitored by U.S. intelligence. White House Chief of Staff Reince Priebus, White House aide Stephen Miller, Trump’s son-in-law Jared Kushner and Trump’s adult children all played formal roles in Trump’s transition, along with many other Trump associates and former government officials. Nunes himself was a member of the transition executive committee.

Who were Trump transition members talking to? Again, Nunes didn’t say, except to note that the surveillance was not part of an ongoing FBI investigation into whether the Trump campaign coordinated with Russian authorities who were meddling in the election. In addition to foreign diplomats or other obvious contacts, the U.S. intelligence dragnet could include almost any person in the United States under court-approved surveillance who was in contact with transition officials or who claimed to have been in contact with Trump transition members.

What were they talking about? Again, Nunes didn’t say. But it’s most likely that the classified intelligence reports that Nunes cited discussed either attempts to influence the incoming Trump administration or policy changes that a foreign government was considering in response to Trump’s election. It’s also possible that the surveillance picked up discussions about business deals, though that is unlikely to generate intelligence reports unless the communications suggested a crime was being committed.

Was the surveillance done under a Foreign Intelligence Surveillance Act warrant? Nunes said it was, which suggests that the communications occurred between Trump transition officials and other people in the United States, not overseas, since the National Security Agency doesn’t need a warrant to conduct eavesdropping overseas.

What are the requirements for obtaining a FISA warrant? The FBI asks a special federal court that conducts its proceedings in secret for such a warrant when it has reason to believe that someone in the United States is acting as an agent of a foreign power — in the worst-case scenario, conducting espionage against the United States. But its also possible to get FISA warrants to intercept routine communications by ambassadors and other foreign officials in the United States, which seems to be how Trump’s former national security advisor, Michael Flynn, was detected on phone calls with Russia’s ambassador last year.

Aren’t the identities of U.S. persons who are picked up inadvertently by surveillance supposed to be protected under the FISA law? Yes. But senior intelligence officials can decide to include their names or other identifying information in classified intelligence reports if they decided that doing so is important for understanding the intelligence, or if it shows clear evidence of a potential crime. This process, known as unmasking, could have happened with the Trump transition team. Nunes said it had, but Rep. Adam Schiff (D-Burbank) said in most cases he had been told the identities were not unmasked but were obvious. So far, Flynn is the only member of Trump’s team who is known to have been picked up by the surveillance.

How did Nunes get the information? He said he got it from intelligence sources but did not identify them.

Does this mean President Trump was correct to claim on Twitter that he was wiretapped by President Obama? No. There is no evidence of a wiretap at Trump Tower — as FBI Director James B. Comey confirmed in public testimony this week — and the intercepts were not aimed at Trump or his aides. They were aimed at foreign intelligence targets with whom Trump transition team members apparently were communicating.

What’s the impact of all this? At a minimum, it has disrupted the House Intelligence Committee’s efforts to conduct a bipartisan investigation into Russia’s role in the election. Schiff, the ranking Democrat, was furious that Nunes held a news conference and then briefed the president on Wednesday without notifying the committee. On Thursday, a committee aide said Nunes had apologized “for not sharing information about the documents he saw with the minority before going public” and that he “pledged to work with them on this issue.”

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