Nunes Is So Dumb He Missed the Most Likely Way the Trump Campaign Might Have Been Wiretapped

Devin Nunes is so bad at his job overseeing the nation’s intelligence agencies that his memo alleging FISA abuses failed to mention the one way he might have legitimately argued that the Deep State was spying on the Trump campaign.

The memo, released Friday after a week of political drama, purports to show that the process by which the FBI applied for four individualized FISA orders targeting former Trump foreign policy advisor Carter Page, spanning from October 2016 through July 2017, failed to adequately explain to the court that the application included information obtained as part of paid opposition research. On that claim, the memo falls short of making the case. So too does Nunes’ claim that “top officials used unverified information [from the Title I warrants] to fuel a counter-intelligence investigation during an American political campaign,” since Carter Page had been gone from the Trump campaign for a month before he was targeted.

But the memo only deals with the request for traditional “probable cause” FISA orders approved by the FISA Court. The memo even says this surveillance at issue was “not under Title VII,” probably an effort to distinguish this surveillance practice, which Nunes claims is being abused, from collection under FISA’s Section 702, which is even more problematic from a privacy standpoint. Nunes wrote the bill that reauthorized Section 702 two weeks ago, a bill that included no reforms to the practice that allows the government to access the communications of Americans against whom the FBI has no evidence of wrong-doing without a warrant. That is, Nunes wants to make sure you know that only the FISA practice that actually requires probable cause is at issue in his claims of FISA abuse, not the practice that permits warrantless surveillance of Americans that he championed a few weeks ago.

The thing is, Nunes is probably wrong that the surveillance of Carter Page doesn’t involve any of the authorities he recently pushed through. That’s because, along with Section 702, Nunes’ bill extending FISA’s Title VII also reauthorized a section, 705(b), which the government uses to spy on Americans already under surveillance, like Carter Page, during the periods when they travel overseas.

Carter Page traveled to Russia and London in December 2016 and Abu Dhabi in January 2017; he told the House Intelligence Committee he met with a slew of interesting foreigners along the way. It would be malpractice for the government to halt surveillance on someone it suspected of spying for Russia when he went to Russia.

So assuming the NSA kept spying on Page when he was meeting with the Russians they suspected him of conspiring with while he was in Russia, then the government would have switched to 705(b) authority. That permits the NSA to use the different kinds of surveillance tools, more powerful tools like hacking someone’s computer or querying data collected in bulk, that it uses overseas, drawing from more kinds of collection.

The thing is, that kind of individualized overseas surveillance — far more than the domestic individual surveillance at issue in the memo — has been a problem in recent years. Indeed, in the months before the government obtained its first FISA order on Carter Page, the NSA’s Inspector General found that in the 8 years since Congress had passed 705(b), NSA had never set up a system to track surveillance conducted under it. Of particular concern, analysts were conducting surveillance under the authority outside the time frame permitted under the 705(b) order, meaning that analysts might collect data from a period before the 705(b) order, or even before the traditional FISA order underlying it, had been approved. Or, NSA might forget to turn off their hacking sensor in Page’s laptop or smart phone even after he returned to the US. By using overseas spying methods outside the time period when the person was overseas, then, NSA might have gotten what amounts to a time machine, letting the government (perhaps unknowingly) obtain stored communications from the period when Page was still working with the Trump campaign.

The discovery, in early 2016, that NSA hadn’t been following the rules for the kind of spying that would have been used with Page while he was in Russia led to a string of other discoveries, which in turn led to the termination of one kind of NSA spying, called “about” collection. But the process of fixing 705(b) and “about” collection continued well into the period when Page was under FISA surveillance, including the times when he was traveling overseas.

All that said, if the government obtained information from outside the time of Carter Page’s travels overseas improperly, Trump has only Trump to blame. That’s because, even after they did fix the problems with the program in April 2017, the Trump Administration didn’t do what the Obama Administration before it had done on numerous occasions: get rid of any data obtained improperly under such conditions. So while the underlying problems with 705(b) were never fixed under the Obama Administration (which is absolutely something that should be laid at his feet) Jeff Sessions and Dan Coats would be responsible for any lasting harm under the problems. The Trump Administration’s deviation from past practice in destroying improperly obtained data would be responsible for any harm to Trump.

Ultimately, Nunes’ failure to consider for his politicized memo the one FISA practice most likely to have affected Carter Page identifies the real source of any problems with FISA: a failure of oversight, including from people like Devin Nunes. With the Title VII reauthorization bill he authored, Nunes might have ensured some follow-up to make sure known overseas spying problems were fixed. He might have required the government to make sure it destroyed any data on the Trump campaign it collected while Page was overseas.

Instead, Nunes seems completely unaware that such problems existed.

 

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

37 replies
  1. Trip says:

    Great article. Pieces of legislation usually beyond my grasp.

    Also “Nunes seems completely unaware” stands alone.

  2. TomA says:

    This post nails it. The intelligence community is genuinely fearful that it’s bag of tricks will be exposed and that consequently Congress will be hard-pressed to close the loopholes in future legislation. I don’t think we will ever see a return to real privacy again, but we can hope that due process will prevail over unfettered secrecy.

    • Trip says:

      I’m not sure that is how it will go. Trump has been condemning the intel community. Like other recent GOP ventures, the answer will be to disband and replace with privatization. Trump/Prince/Flynn were advocating for a private spy network. Private companies have even less oversight than secret gov’t agencies. That’s my fear of where they will try to take this.

      In other words, you can’t trust them, so why have it at all. See the EPA, the CDC and other established gov’t systems, being chopped and distorted from within.

  3. earlofhuntingdon says:

    Page’s interest in the Trump campaign does not explain why the Trump campaign was interested in Carter Page.  His Russian connections, along with those of Manafort, Gates, Papadopoulos and others seems to be the common thread.  Why would that be, I wonder, for a Republican Party presidential nominee and now president.

    • Trip says:

      “I was so naive, I was new at this, I didn’t know his background, I don’t know him at all, never met him, oh wait, dodgy dossier, he’s a hero, (that I still don’t know)”.  Modus operandi.

      It’s all just coincidental.

  4. Parker Blake says:

    I’m not convinced this is proof of Nunes’s stupidity (although he is stupid, to be clear). I don’t think his memo was ever intended as a meaningful expose in the first place. I think a semi-decent comparison is Joe McCarthy’s list, which it’s pretty clear wasn’t even a list when he first started waving pieces of paper around.

    I think its main purpose is a whip check on the GOP caucus in Congress, so that the hardliners can get a read on who is publicly with them, who dares to contradict them, and who is in the middle and needs to be lobbied.

    I think Nunes’s claimed further memos to come will serve the same purpose as periodic vote checks.  Trump and his allies need to know where Ryan stands, where the GOP members of the House Judiciary Committee stand, and whether they have the votes in the House (and Senate) to block the impeachment process.

    A solidly researched, well reasoned memo won’t serve that purpose, because they need to know who is with them despite facts and logic. Furthermore, they need to cement support now by flushing opinions out into the open, so it gets harder for members of Congress to walk back their position. This approach may, of course, cost some votes, but I think at this point they’re confident enough of 34 votes in the Senate that they are willing to trade a few votes for greater certainty as to where they stand in the bigger picture.

    I’m sure Nunes would love to have a treasure trove of evidence of a conspiracy, but I doubt he’s dumb enough to actually believe that’s true. I think he’s well aware that the best he’ll get is documents with the names of targets that he can spin into a piece of paper he can wave around.

    I think where the comparison to McCarthy’s list is less apt is that McCarthy’s list was intended more as a rallying point for the start of a campaign, and the Nunes memo is intended more to rally the rear guard. But both documents aren’t about facts, they’re about putting pressure on political actors and forcing them to take sides.

    • bmaz says:

      They do those kind for whip counts every morning in the Republican caucus in the House. They already know that.

      • Parker Blake says:

        Whip counts are on legislative issues. The only time they’d whip on impeachment would be if a motion was due on the floor. Doing it now would be incredibly dangerous if it leaked if it showed any uncertain votes — and typically there are always uncertain votes due to members being unavailable or just too lazy to return a call.

        Also, they’re handled by Ryan’s team (and McConnell’s in the Senate) and nobody in their right (or wrong) mind on the Trump side would trust them to handle it and report it in a straight up manner. He needs his own intelligence.

    • emptywheel says:

      Interesting argument, this as a whip count.

      One problem with it, though, is at least a few Republicans supported the memo coming out because they knew it would make Nunes and Ryan look like shit.

      • SpaceLifeForm says:

        The memowars continue.

        Which is why Schiff should back off for now.
        If Nunes is going to serve more burgers, fine.
        Can not stop him. Let him show the world he is just a lousy cook, and one should avoid his bar-b-que.

        Seriously, Schiff should back off. His memo will likely result in more ‘inadvertent reveal’ than what has come out so far.

        • Trip says:

          BREAKING: House intelligence panel votes to make classified Democratic memo public; now goes to Trump.
          Isn’t this what we have committees for, arguing point versus counterpoint, rather than this grab for media attention? Eventually, all of the supporting documents will have to come out, otherwise partisans will remain glued to original positions, in spite of the various memos.
          So what is happening behind the scenes that they are trying to deflect from? What horrid policy or piece of legislation is coming?

           

           

          • SpaceLifeForm says:

            Ok. Anyone arguing that DOJ/FBI should review? I’ve only heard crickets so far.

            Will potus declassify? If it is classified in any way different than TS//NOFORN, that will be interesting.

            If potus does not declassify, is it all a charade to give cover to Nunes? Setting up the override vote. That may fail.

            Maybe Trump really is an expert swamp-drainer.

            • Trip says:

              I imagine that the memo, if released, will be neutered, for ‘national security issues’, or perhaps not be released for same. But at any rate, we’ll be talking about ‘memos’ instead of Mueller. I just read an article from a historian who made important points about this clusterF. Watergate hearings were aired live, not behind closed doors, and not with witnesses determining whether they’d like to show up or not. This process has been ridiculous and makes the country appear completely idiotic. Stop arguing in memos and have the public watch the witnesses instead.

              Trump would have to step out of the water to completely drain the swamp.

      • Parker Blake says:

        Point taken — It’s a rough and dirty measure, like all whip counts, and Trumpies would be dumb to put too much stock into it. But I think it’s fair to expect that there will be increasing numbers of loyalty tests from Trump loyalists in Congress aimed at flushing out where the GOP members stand. Presumably it will take the form of Dear Colleague letters and other measures trying to force members to declare their loyalty to Trump, in the same way that Trump forces his Cabinet to go around the table and say how great he is. If members don’t bow down, expect pressure to be brought to bear in the same way that Comey and Sessions have been attacked.

  5. Nick says:

    Did the 2016 FISA warrant apps re Carter Page include the *pre-Trump* intel gathered: from 2013-when Russian ops were recorded discussing attempts to use him as an intel source for Russia- & from his 2014 FISA warrant, AND his Russia contacts/denials since? I would think so…

    1/23/2015 Sworn Criminal Complaint – excerpts
    32. Also on or about April 8, 2013, IGOR SPORYSHEV and VICTOR PODOBNYY, the defendants, discussed PODOBNYY’s efforts to recruit a male working as a consultant in New York City (“Male-1”) as an intelligence source:
    VP: [Male-1] wrote that he is sorry, he went to Moscow and forgot to check his inbox, but he wants to meet when he gets back. I think he is an idiot and forgot who I am. Plus he writes to me in Russian [to] practice the language. He flies to Moscow more often than I do. He got hooked on Gazprom thinking that if they have a project, he could be rise up. Maybe he can. I don’t know, but it’s obvious that he wants to earn lots of money .
    IS: Without a doubt.
    VP: He said that they have a new project right now, new energy boom
    VP: He says that it is about to take off. I don’t say anything for now.
    IS: Yeah, first we will spend a couple of borrowed million and then
    VP: [UI] [laughs] it’s worth it. I like that he takes on everything. For now his enthusiasm works for me. I also promised him a lot: that I have connections in the Trade Representation, meaning you that you can push contracts
    [laughs]. I will feed him empty promises.
    IS: Shit, then he will write me. Not even me, to our clean one.
    VP: I didn’t say the Trade Representation . . . I did not even indicate that this is connected to a government agency. This is intelligence method to cheat, how else to work with foreigners? You promise a favor for a favor. You get the documents from him and tell him to go fuck himself. But not to upset you, I will take you to a restaurant and give you an expensive gift. You just need to sign for it. This is ideal working method.

    33. Based on my training, experience, and participation in this investigation, I believe that, in this conversation, IGOR SPORYSHEV and VICTOR PODOBNYY, the defendants, discussed PODOBNYY’s attempted use of Male-1 as an intelligence source for Russia. PODOBNYY stated that PODOBNYY had emailed with Male-1 (“[Male-1] wrote that he is sorry”), who was interested in business opportunities in Russia (“He got hooked on Gazprom [a Russian energy company] . it’s obvious he wants to earn lots of money”) . PODOBNYY stated that PODOBNYY “promised [Male-1] a lot” in terms of PODOBNYY’s connections in Russia, including that PODOBNYY is connected to SPORYSHEV at the Trade Office, but that these promises were “empty promises.” After SPORYSHEV expressed concern that Male-1 might actually contact SPORYSHEV at SPORYSHEV’s cover position, PODOBNYY told SPORYSHEV not to worry because PODOBNYY did not tell Male-1 that SPORYSHEV was connected to the Russian Government. PODOBNYY then explained his recruitment method, which includes cheating, promising favors, and then discarding the intelligence source once the relevant information is obtained by the SVR (“This is intelligence method to cheat . . . You promise a favor for a favor. You get the documents from him and tell him to go fuck himself.”).

    34. On or about June 13, 2013, Agent-2 and I interviewed Male-1. Male-1 stated that he first met VICTOR PODOBNYY, the defendant, in January 2013 at an energy symposium in New York City. During this initial meeting, PODOBNYY gave Male-1 PODOBNYY’s business card and two email addresses. Over the following months, Male-1 and PODOBNYY exchanged emails about the energy business and met in person on occasion, with Male-1 providing PODOBNYY with Male-l’s outlook on the current and future of the energy industry. Male-1 also provided documents to PODOBNYY about the energy business.”

      • Nick says:

        Replying to bmaz-
        (Reply button not functioning)
        Thanks for laying out succinctly the point. In the RISC there are dockets, Rules of Procedure, genuine, no-nonsense Article III judges, and…a record- which should include the early history to which I was referring. Sorry for laying out so much in my post.
        My primary point in doing so was to highlight that, notwithstanding the secrecy of RISC and the record, it’s possible from reading what is available, and connecting the dots, to conclude that the FBI and DOJ already had legitimate concerns about the Russians attempting to recruit and use Carter Page as an intel source for Russia, years before he became involved in the Trump campaign. With this information, it would be unreasonable to conclude that those charged with vetting and approving the filing of the 2016 applications for RISA warrant and extensions would have relied solely or primarily on unsubstantiated allegations in the Steele intel, having little or nothing to do with Carter Page. From these facts, one could conclude that those same officials did not abuse their positions or authority when they vetted and approved the applications for the 2016 warrant and extensions.

  6. claes g hagstromer says:

    Agree that the title VII reauthorization should have fixed the section 705 problems.

    But don’t agree with “failed to adequately explain to the court that the application included information obtained as part of paid opposition research. On that claim, the memo falls short of making the case.”

    I don’t think Marci can make this claim since she has not read the underlying classified FISA application and we therefore simply do not know if the 3 Republicans (has any Democrat read it?) who have read it are telling the truth??

    Also, memo says that McCabe testified that no FISA application would have been made without the dossier.

    Simple solution: declassify both the FISA application and the McCabe testimony with proper redactions and we will find out who is exaggerating!!

    • bmaz says:

      Oh. Hai there. Let us start off with the thought that her name is spelled Marcy, not “Marci”.

      Then let us move on to the thought that you, Mr. Claes interloper, think it is a brilliant ploy to note that Marcy has not read the classified FISA app, that you clearly also have not read. And then you regurgitate the lie about the nature of McCabe’s statement as to the “dossier”.

      But, hey, thanks for trolling by. Always a pleasure to deal with the drive by troll set!

    • emptywheel says:

      By all means they should release McCabe’s testimony, as I called for before the release of the memo. It’s not even being discussed, which should tell you something.

      As for whether or not I can determine whether the memo makes the case, of course I can conclude that. Because they present an argument, and (as I laid out here) then fail to provide evidence to support it. This is basic Freshman Comp stuff, and Nunes failed it.

      • Claes Hagstromer says:

        Yes, they “fail to provide evidence to support it” because they can’t publish the FISA application (and possible other classified info)! You even seem to argue against publishing the FISA application in your 2/5/18 blog about Mukasey since he wants the redacted FISA application made public! So if Congress and Trump decide to declassify this redacted FISA application (or other body) to find out the truth, are you against that?

        In your vice.com article you present good points that there could have been many other reasons the FISA court granted the 10/21/2016 and 3 more FISA renewal orders other than the dossier. BUT if FBI did not know that DNC and HRC campaign funded the Steele dossier at any of these 4 occassions (if the dossier was used in all 4 FISA applications) then they are pretty incompetent (maybe not big news!) since FBI even got dossier information directly from Steele in summer of 2016 per https://www.washingtonpost.com/world/national-security/clinton-campaign-dnc-paid-for-research-that-led-to-russia-dossier/2017/10/24/226fabf0-b8e4-11e7-a908-a3470754bbb9_story.html?utm_term=.1d0b91ce4524 and the Nunes memo said Steele has a longterm relationship with FBI!

        The entire story is a mess and we can only find out the truth IF we all push for the truth to come out as we did during Watergate when ONE truth eventually came out i.o. one left and one right truth now! I am against drawing conclusions on either side based on insufficient data!

  7. Claes Hagstromer says:

    Dear bmaz,

    Sorry for misspelling Marcy! And sorry bmaz for not knowing that we are called “interlopers” on this site for having a different opinion and wanting the real truth!

    • bmaz says:

      Dear Claes,

      Fair enough as to misspelling “Marcy”. It happens, although rarely. As to interloper status, golly, did I miss something or was that not your first comment here? Or have you commented previously under some other persona, which would be a sock puppet violation of our terms of service? Do tell.

  8. Claes Hagstromer says:

    Dear bmaz,

    My “Reply” button does not work which is reason for new post! Have posted before twice I think under same name and might again in future IF it’s possible to avoid being called an “interloper” or a “troll” (even though I have always enjoyed children troll stories!). Apology is always welcome since I greatly enjoy Marcy’s deep analysis and understood that this is a sophisticated site that can deal with wanting the truth and avoiding insults!

    • SpaceLifeForm says:

      Claes, since you are older than BMAZ, cut him some slack. BMAZ is just a puppy. K? :-)

      But BMAZ is correct. Read, learn, and ask *clear* questions. More likely to get solid answers.

      On a serious note, come up with new handle, do not use your name. I can find exactly where you live.

      Hint: I know you are 72.

      • earlofhuntingdon says:

        Important suggestion.  Use a pen name.  Use a different e-mail address than you use for family or on-line commerce.  There are a variety of free options with greater security than gee-male.

        • Claes Hagstromer says:

          OK, will do. But with a pen name and fake email I will become just another “troll” as all of you anonymous trolls already are!!! Haha!!!

          • earlofhuntingdon says:

            NOT a fake e-mail.  An e-mail that you use for limited purposes.  And keep separate from family comms and those from digital purchases. You use them for different purposes, in the same way you might use the laundry, bathroom and kitchen.

  9. Debitor serf says:

    Rep cohen admitted on NPR the other day that page was responsible for voluntarily identifying Russian agents in the past. I haven’t heard this anywhere else. I think he could be a double agent. Rep cohen went on in the same interview To call trump ‘evil’ too. So who knows what fake news to believe.

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