Eli Lake: Nunes’ dishonesty undermines larger issue

Last week the chairman of the House Intelligence Committee, Rep. Devin Nunes, R-California, announced dozens of intelligence reports that inappropriately included details on President Donald Trump’s transition. This week, he told me that his source for that information was an intelligence official, not a White House staffer.

It turns out, he misled me. The New York Times reported Thursday that Nunes had two sources, and both worked for the White House. This distinction is important because it raises questions about the independence of the congressional investigation Nunes is leading, which may lead to officials at the White House.

Nunes is leading a double investigation of sorts. His committee is probing ties between the Trump campaign and Russia’s influence operation against the 2016 election. It’s also looking into whether Barack Obama’s White House inappropriately spied on Trump’s transition.

The chairman told me Thursday that elements of the Times story were inaccurate. But he acknowledged, “I did use the White House to help to confirm what I already knew from other sources.” This is a body blow for Nunes, who presented his findings last week as if they were surprising to the White House. He briefed Trump, after holding a press conference on Capitol Hill. And as he was leaving the White House, he made sure to address the press again.

But this was a show. The sources named by the Times work for the president. They are political appointees. It strains credulity to think that Trump would need Nunes to tell him about intelligence reports discovered by people who work in the White House.

Another U.S. official familiar with the affair told me that one of the sources named in the article, former Defense Intelligence officer Ezra Cohen-Watnick, did not play a role in getting information to Nunes. This official said Cohen-Watnick had come upon the reports while working on a review of recent Justice Department rules that made it easier for intelligence officials to share the identities of U.S. persons swept up in surveillance. He turned them over to White House lawyers.

The fact that a serious investigation is being undermined by Nunes’s ever-changing story is a tragedy. Ever since former NSA contractor Edward Snowden disclosed top-secret documents to the Guardian and the Washington Post, civil liberties advocates, progressives and libertarians have raised alarms about the ability of U.S. eavesdroppers to circumvent the Foreign Intelligence Surveillance Act. This is through what is known as “incidental collection,” when a U.S. person is on the other end of a communication that is legally monitored by the U.S. government.

Until now, that issue has not had much traction in Congress. Republicans and Democrats – with few exceptions – have voted to reauthorize the law without making it harder to collect and disseminate the names of U.S. persons caught up in this surveillance.

To be sure, national security experts and the U.S. government have defended these FISA programs as critical tools for tracking terrorists and detecting plots in the U.S. But like most government activities that are shrouded in secrecy, this snooping is prone to inevitable abuse.

A precedent to what may have happened with the Trump transition involved the monitoring of Israel’s prime minister and other senior Israeli officials. The Wall Street Journal reported at the end of 2015 that members of Congress and American Jewish groups were caught up in this surveillance and that the reports were sent to the White House. This occurred during a bitter political fight over the Iran nuclear deal. In essence the Obama White House was learning about the strategy of its domestic political opposition through legal wiretaps of a foreign head of state and his aides.

Nunes has sought to investigate whether something similar happened with regard to the Trump transition. So far, he has not provided any evidence. The distribution of details about incidentally wiretapped Americans has certainly had political effects, and appears politically motivated. Consider the disclosure of phone conversations between Trump’s first national security adviser, Michael Flynn, and the Russian ambassador. That leak forced Flynn to resign after three weeks on the job for misleading his colleagues about whether he discussed sanctions on the call.

Then there are the stories about how Obama’s White House sought to preserve and disseminate intelligence collected on ties between Trump’s associates and Russia in the final days of the presidency. Now Nunes says he has seen intelligence reports that contained details about Trump’s transition that were distributed widely inside the government, including to the White House.

Democrats should have a keen interest in all of this. After all, if Obama can keep tabs on his political opposition, there is nothing to stop Trump from doing the same. If the investigation led by Nunes leads Congress to reform the FISA process, then – setting aside his needless political machinations – he will ultimately have done the republic a great service.

Ben Wizner, an attorney for the American Civil Liberties Union and also a lawyer for Snowden, told me Wednesday, “To the extent that this discussion raises the profile of potential abuses of so-called incidental information collection, that is positive.” Congress is expected to decide in the fall whether to reauthorize or amend the FISA law.

Sadly, the merits of this case are undermined by how the White House and Nunes have made it. The chairman is better than this. By misrepresenting how he obtained information worthy of investigation he has handed his opposition the means to discredit it. That’s rough justice for Nunes, and a tragedy for the country.