Does the House Permanent Select Committee on Intelligence understand intelligence gathering?
After all, that committee is charged with oversight over the United States’ vast surveillance bureaucracy. And yet, comments from the chair of the committee, Rep. Devin Nunes (R-Calif.), suggest that he is unclear on the concept.
This week, President Donald J. Trump’s national security adviser Michael Flynn stepped down amid news that he had discussed U.S. sanctions against Russia with Russian Ambassador Sergey Kislyak before Trump was sworn in as president.
By doing so, Flynn may have violated the Logan Act, a law prohibiting private individuals from talking with a foreign governments in an effort to influence foreign policy contrary to the interests of the United States. Flynn had assured Vice President Mike PenceMichael (Mike) Richard PenceTrump endorses challenger to Hogan ally in Maryland governor's race Pence to headline New Hampshire event focused on Biden spending plan The Hill's Morning Report - Presented by ExxonMobil - Arbery case, Biden spending bill each test views of justice MORE and others that he had not discussed the sanctions or the incoming Trump administration’s likely position on them with Kislyak.
However, the Washington Post reported that intelligence officials had recorded Flynn’s conversations with the Russian ambassador to the U.S. before Trump took office.
The recordings reportedly contradict Flynn’s reassurances. The man had to go.
Upon learning of Flynn’s resignation, Nunes said, “the big problem I see here is that you have an American citizen who had his phone calls recorded.”
That’s the big problem here? Actually, recording Flynn is a pretty obvious result of American foreign intelligence practices.
First, he was talking to the Russian ambassador, who is an agent of a foreign power. Agents of foreign powers are acceptable foreign intelligence targets and the government could have a warrant to surveil Kislyak under the Foreign Intelligence Surveillance Act (FISA) since 1978.
Next, phone calls are wiretappable. Congress ensured that would be true with the Communications Assistance to Law Enforcement Act of 1994 (CALEA).
Further, while wiretapping in the criminal context involves only recording when the targets talk about illegal activity, foreign intelligence wiretapping is comprehensive. All conversations are collected and important bits mined out after the fact.
So when Flynn talks on the telephone to Kislyak, it’s practically certain he’s going to get recorded since Kislyak is being recorded.
The intelligence jargon for this is “incidental collection,” which means, among other things, that Americans’ communications get collected when we talk to targets. It is amazing that Flynn, who once served as Assistant Director of National Intelligence, didn’t know that.
Nunez, as chair of the intelligence committee, should understand this as well.
Some have suggested that, because Flynn is an American citizen, minimization procedures should have protected his privacy. Minimization procedures are policies which govern how electronic surveillance of United States persons may be used and disclosed.
While different minimization procedures apply depending on the legal authority under which the government conducted the surveillance, as a general matter, the procedures require that a U.S. person’s name be redacted and replaced with “(U.S. Person)” to protect that individual’s privacy.
However, an exception to that rule is if the U.S. person’s name is necessary to understand the foreign intelligence information or assess its importance. Flynn’s identity was essential to understanding why his conversation with Kislyak was important.
If I had called the Russian Embassy to discuss President Obama’s sanctions, the ambassador wouldn’t even bother to pick up the phone. But when the president-elect’s future national security advisor calls to discuss them, the conversation matters.
Politicians’ reactions of surprise to surveillance revelations are themselves surprising. Civil libertarians have been complaining about the vast scope of incidental collection and the inadequacy of minimization procedures for years. Leaders on the intelligence committees have responded with a big yawn; “Trust us, we have to collect it all to keep America safe.”
But now that Nunes has learned that one of his own has been spied on, it’s cause for alarm, even though this surveillance of the Russian ambassador was legal, unavoidable, and justified.
Perhaps Nunes’ concern over Flynn’s rights will mean that, in the future, civil libertarians’ warnings about overbroad government spying taking place under other legal authorities, involving wiretapping people who are neither agents of foreign powers nor foreign intelligence targets, including Americans, will find a more receptive audience.
Jennifer Granick is the author of “American Spies: Modern Surveillance, Why You Should Care, And What to Do About It,” available now from Cambridge University Press, and Director of Civil Liberties at the Stanford Center for Internet and Society.
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