Representative Devin Nunes is under investigation for possibly leaking classified information, but the bigger scandal is the coördinated effort to manufacture an excuse for President Trump’s wiretapping allegation.
Recently, several members and staffers on the House Intelligence Committee, which is investigating Russia’s role in the Presidential election, visited the National Security Agency, in Fort Meade, Maryland. Inside the enormous black glass headquarters of America’s largest spy agency, the congressmen and their aides were shown a binder of two to three dozen pages of highly classified intercepts, mostly transcripts of conversations between foreign government officials that took place during the Presidential transition. These intercepts were not related to the heart of the committee’s Russia investigation. In fact, only one of the documents had anything to do with Russia, according to an official who reviewed them.
What the intercepts all had in common is that the people being spied on made references to Donald Trump or to Trump officials. That wasn’t even clear, though, from reading the transcripts. The names of any Americans were concealed, or “masked,” the intelligence community’s term for redacting references to Americans who are not the legal targets of surveillance when such intelligence reports are distributed to policy makers.
The binder of secret documents is at the center of the bizarre scandal created by what may be the most reckless lie President Trump has ever told. On March 4th, he tweeted, “Terrible! Just found out that Obama had my ‘wires tapped’ in Trump Tower just before the victory. Nothing found. This is McCarthyism!” The White House made several efforts to justify Trump’s claim, including using Devin Nunes, the chairman of the House Intelligence Committee, as a conduit for the documents, which allegedly offered some substantiation. A former Nunes staffer now working for the White House dug up the transcripts and shared them with Nunes. As Bloomberg View reported, earlier this month, Susan Rice, Obama’s national-security adviser, had used a process that allowed her to request that the masked names be revealed to her. Rice had to log her unmasking requests on a White House computer, which is how Trump’s aides knew about them. Nunes and the White House presented this as a major scandal. “I think the Susan Rice thing is a massive story,” Trump told the Times, adding, while offering no evidence, that Rice may have committed a crime.
It is now clear that the scandal was not Rice’s normal review of the intelligence reports but the coördinated effort between the Trump Administration and Nunes to sift through classified information and computer logs that recorded Rice’s unmasking requests, and then leak a highly misleading characterization of those documents, all in an apparent effort to turn Rice, a longtime target of Republicans, into the face of alleged spying against Trump. It was a series of lies to manufacture a fake scandal. Last week, CNN was the first to report that both Democrats and Republicans who reviewed the Nunes material at the N.S.A. said that the documents provided “no evidence that Obama Administration officials did anything unusual or illegal.”
I spoke to two intelligence sources, one who read the entire binder of intercepts and one who was briefed on their contents. “There’s absolutely nothing there,” one source said. The Trump names remain masked in the documents, and Rice would not have been able to know in all cases that she was asking the N.S.A. to unmask the names of Trump officials.
Nunes is being investigated by the House Ethics Committee because, in talking about the documents, he may have leaked classified information. But this is like getting Al Capone for tax evasion. The bigger scandal is the coördinated effort to use the American intelligence services to manufacture an excuse for Trump’s original tweet.
The intelligence source told me that he knows, “from talking to people in the intelligence community,” that “the White House said, ‘We are going to mobilize to find something to justify the President’s tweet that he was being surveilled.’ They put out an all-points bulletin”—a call to sift through intelligence reports—“and said, ‘We need to find something that justifies the President’s crazy tweet about surveillance at Trump Tower.’ And I’m telling you there is no way you get that from those transcripts, which are about as plain vanilla as can be.” (The White House did not respond to a request for comment.)
The fallout from Trump’s tweet could have grave consequences for national security. The law governing the N.S.A.’s collection of the content of communications of foreign targets is up for renewal this summer. Known as Section 702, part of the Foreign Intelligence Surveillance Act, it is perhaps the most important intelligence tool that America’s spy agencies have to gather information about potential terrorist attacks and about the intentions of regimes around the world. There are legitimate privacy concerns about allowing the N.S.A. to vacuum up such an enormous amount of communications. A report from 2014 by the Obama Administration’s Privacy and Civil Liberties Oversight Board identified several areas that might be changed to increase the privacy protections for Americans, but the board also “found no evidence of intentional abuse” of the program.
Some American intelligence officials are now concerned that Trump and Nunes’s wild claims about intercepts and Rice have made Section 702 look like a rogue program that can be easily abused for political purposes. The intelligence source said, “In defense of the President, Devin Nunes and some other partisans have created a huge political problem by casting doubt, in the service of Donald Trump, on these intercepts.” Senator Rand Paul, of Kentucky, a leading critic of Section 702, has been using the episode to rally libertarians. He recently tweeted, “Smoking gun found! Obama pal and noted dissembler Susan Rice said to have been spying on Trump campaign.” Democratic critics of Section 702 have also been emboldened. “Section 702 of FISA allows warrantless searches on Americans. That’s unconstitutional & must be changed,” Representative Ted Lieu, the Democrat from California, tweeted last month, during the controversy.
“They manufactured a scandal to distract from a serious investigation,” Eric Swalwell, a Democratic member of the House Intelligence Committee, who would not comment on the N.S.A. documents, said. “And the collateral damage is the public confidence in our intelligence community when we need to count on them now more than ever. Considering the threats we are facing right now from North Korea and ISIS, it’s a pretty dangerous time to undermine the I.C.’s credibility to make a five-yard sack in the Russia investigation.”
Even though there is now some bipartisan agreement that Nunes’s description of the intercepts was wildly inaccurate, Republicans on the House Intelligence Committee are still preparing to focus on Obama’s national-security team, rather than on Vladimir Putin’s. Last week, Democrats and Republicans finalized their witness lists, and the names tell a tale of two separate investigations. The intelligence source said, “The Democratic list involves all of the characters that you would think it would: Paul Manafort, Roger Stone, Carter Page,” speaking of the three Trump campaign officials who have been most closely tied to the Russia investigation. “The Republican list is almost entirely people from the Obama Administration.”
The fake scandal created by Trump and Nunes is not over yet. The first name on the Republican list is Susan Rice.