Nunes “Undermines Himself” with Surveillance Claims

By Michael J. Morell

During his 33-year career at CIA, Michael Morell served as Deputy Director for over three years, a job in which he managed the Agency's day-to-day operations, represented the Agency at the White House and Congress, and maintained the Agency's relationships with intelligence services and foreign leaders around the world.  Michael also served twice as Acting Director. Michael's senior assignments at CIA also included serving for two years as the Director of Intelligence, the Agency's top analyst, and for two years as Executive Director, the CIA's top administrator—managing human resources, the budget, security, and information technology. Michael was the only person who was both with President Bush on September 11th, and with President Obama on May 1st, when Bin Laden was brought to justice.

House Intelligence Committee Chairman Devin Nunes on Wednesday said he had seen intelligence reports showing that communications of President Donald Trump’s transition team had been picked up during foreign surveillance operations.

Nunes, who had been a member of Trump’s transition team, told reporters it was “incidental collection” of the communications during legal, normal foreign intelligence gathering. But, he added, the names of the President and others on the transition team “were clearly put into intelligence reports” that were widely disseminated within the Intelligence Community. 

Though he is leading the House’s investigation into Russian interference in the 2016 election, Nunes stated that what he had provided has “nothing” to do with Russia or the investigation.

Nunes said he had “confirmed that additional names of Trump transition team members were unmasked,” that is they were revealed by name.  Later, Ranking Member Adam Schiff said Nunes told him in a conversation “that most of the names in the intercepted communications were in fact masked, but that he could still figure out the probable identity of the parties.”

The Chairman spoke to the press and the White House before he consulted Schiff or other members of the House Intelligence Committee about the information. His announcement came just two days after FBI Director James Comey revealed at the committee’s first public hearing there is an ongoing investigation into whether there was any coordination between Trump’s campaign and Russia to interfere in the 2016 U.S. election. Comey also said there was no evidence the Obama Administration had wiretapped Trump Tower as President Trump claimed.

“This information was legally brought to me by sources who thought that we should know it,” Nunes said of what he deemed “normal incidental collection.”

The Cipher Brief spoke to former CIA Acting Director Michael Morell, who supported Hillary Clinton during the 2016 campaign, to get his insight into Nunes’ actions, how incidental collection works, and what this could mean for the broader House Intelligence Committee investigation into Russian interference.

The Cipher Brief: Congressman Nunes has revealed that he has seen intelligence reports that indicate there was incidental collection of the Trump transition team, possibly Trump himself, during legally collected, normal foreign surveillance that did not involve Russia.  Does this surprise you? Why would it matter?

Michael Morell: It does not surprise me at all. Incidental collection happens every day. I would routinely see several intelligence reports every day that in some way reflected incidental collection. There are two types of incidental collection; I don’t know for sure which one Chairman Nunes has seen, maybe one, maybe the other, maybe both.

TCB: What are the two types of incidental collection?

MM: Number one is when two legitimate foreign intelligence targets – two foreign nationals who are deemed to have information of intelligence value – are talking about U.S. persons. They are having a conversation, and they are referring to a U.S. person.

Number two is when there is surveillance on a foreign intelligence target – a foreign national – and that foreign national happens to have a conversation with a U.S. person. That is also called “incidental collection.”

With regard to both, that information is only disseminated if it is deemed to be information that has national security implications – if it is considered to be of some intelligence value.

Chairman Nunes said that the reports he saw were of little to no intelligence value.  I can tell you that, while that may be his view, the organization that disseminated those reports – most likely NSA [National Security Agency]– would not have disseminated them unless they deemed them to be of intelligence value.

TCB:  In a disseminated report, how do you handle the U.S. person information?

MM: In the first type of incidental collection, the information about the U.S. person would be disseminated if it is deemed to be of intelligence value – two foreign officials, for example, talking about what approach they think a senior US official will take on a particular issue.

In the second type of incidental collection, where the U.S. person is actually part of the conversation, typically nothing that person says can be disseminated in the U.S. government.  So that portion of the conversation is protected.  The only part that’s disseminated is the foreign intelligence target’s part of the conversation.

TCB: You said typically.  Can what a U.S. person says ever be disseminated?

MM: There is only once instance in which the conversation of the U.S. person – what the U.S. person actually says – can be disseminated and that is if there is an imminent threat. That is if the U.S. person says, “I’m going to kill somebody tomorrow,” or “I’m going to kidnap somebody tomorrow,” or “I’m going to conduct a terrorist attack tomorrow.”  Only in the case of an imminent threat is that information disseminated and then it is disseminated only to the FBI.

TCB:  What about the issue of “masking,” which Chairman Nunes talked about at length? 

When incidental collection gets gets disseminated, the identity of the U.S. person is usually – but not always – redacted, or masked. If it’s anybody but a senior most official of the U.S. government, it is masked. It’s masked by saying, “U.S. person 1, U.S. person 2, U.S. person 3,” depending how many U. S. officials were referenced in the disseminated report.

So [a report], in the first type of incidental collection might say something like “intelligence target, in a conversation with another intelligence target, talked about U.S. person 1.” They don’t name the person.

Or, in the second type of incidental collection, a report could say “intelligence target, in a conversation with U.S. person 1, said the following.”

That’s for most U.S. persons.  But, for the senior most people in the U.S. government, like the President of the United States and probably the President-elect of the United States, they don’t mask those names.  You see intelligence reports all the time with foreign intelligence targets having a conversation about the President of the United States, and the President is not masked to be U.S. person 1 or U.S. person 2. The President is just said to be the President of the United States. 

It is quite possible that these are some of the reports that Chairman Nunes saw.  And there would be nothing inappropriate about that.

TCB: It does raise the question of unmasking U.S. persons – although Congressman Schiff says Nunes told him most of the names were masked, but Nunes was able to figure out for himself who it involved. Is there anything irregular or improper here?

MM: The unmasking of the names of U.S. persons happens all the time too.  And, the unmasking is a whole different process.

Senior officials in the U.S. government, when they see one of these intelligence reports that say U.S. Person 1 or U.S. Person 2, can go back to NSA and ask, “who is that person?” They have to have a good reason for asking that question, and they have to explain that reason to NSA. Once the request is made, NSA says yes or no.  There’s only a small number of people at NSA — I think [NSA]Director Rogers said 20 the other day on the Hill — 20 people at NSA can actually approve an unmasking.  And when that gets approved, it only gets approved for the individuals who specifically requested the unmasking.  It is not unmasked broadly.

TCB: Does this in any way validate President Trump’s claims of wiretapping or surveillance of the Trump campaign and transition?

MM: No.

The President was talking about the U.S. government surveilling him and potentially other individuals in Trump Tower. He was talking about the U.S. government making him and his associates the target of the surveillance. That is not what happened here. The targets of this surveillance were legitimate foreign intelligence targets, foreign nationals – not American citizens, not the President of the United States.

TCB: How would you characterize how Nunes has handled this? He first briefed the press, then headed to the White House, without ever discussing it with the committee that is charged with this whole incident.

MM: It seems to me, based on what the Chairman said, that he did not receive this information in official channels from NSA. It sounds to me like someone handed him this stack of reports and said, “I have concerns about these reports.”

In my view, it would have been appropriate for the Chairman to have done three things:

One, he should have informed Congressman Schiff, the Ranking Democrat on the Committee.

Two, he should have gone to Director Rogers at NSA and said, “Here’s what I have. I want to understand this. I want to know if there’s any more of these reports.. I want to know your views on it.”

And, three, once Nunes got that information from NSA, the appropriate next step would have been for him to have talked to his colleagues on the committee about it.

All of that should have happened before the President of the United States and the media were informed. This was not done in the way that it usually is done and in a way that it should have been done.

The other thing I would say about the way the Chairman handled this is he is supposed to be leading an objective, nonpartisan investigation into the Trump campaign’s possible contacts, or conspiracy with, the Russian government in their campaign to interfere in our election. And when he does something like he did yesterday, he creates the perception that his investigation is not going to be objective and is not going to be nonpartisan. He actually undermines himself when he does something like this.

TCB: Do you expect to hear many calls now for this investigation to be done by an independent commission or some other group?

MM: Yes, I’ve already heard increased calls today. There have been calls all along, and I expect those calls to increase – if not an independent commission, then a joint congressional inquiry.

TCB: During the hearing earlier this week, Nunes was very vocal about leaks. Isn’t this a leak of classified information?

MM: No, because it’s not specific. He didn’t reveal the specific information in the reports.  Nor did he reveal specific targets of intelligence collection.

But with regard to leaks, I’m one of the strongest advocates for the protection of classified information and for the investigation and prosecution of leakers.

I think that’s very important and I couldn’t agree more with the Chairman. But we can’t let the investigation into leaks overshadow the investigation into Russian interference in our election and whether they were helped – in any way – by American citizens.

The Cipher Brief’s Mackenzie Weinger, Callie Wang, and Pam Benson contributed to this report.

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