Questions Raised by Chairman Nunes Disclosure of "Incidental Collection" of Trump Officials

Just when you thought things could not get crazier. the Republican chairman of the House Intelligence Committee, Rep. Devin Nunes, said today that some communications from the Trump transition operation were intercepted as "incidental collection" of lawfully authorized foreign intelligence surveillance.

This raises several interesting questions.

First, who were the Trump officials talking to?  "Incidental Collection"  means that the Trump officials were not the target of the surveillance, but were instead talking with someone who was a target.  In other words, this is not the case of Obama spying on Trump--it is simply ordinary spying on foreign agents.  Unless this was the result of a wiretap focused on criminal activity, any surveillance could only be done pursuant to a FISA Court that was persuaded that there was probable cause that the target was a foreign agent.  This means that Trump transition officials were talking to foreign agents.  Quite frankly, I am not surprised that transition officials would be talking to foreign agents (such as Ambassadors), but I am surprised that the Chairman thought this was a helpful thing to disclose.

Second, given that most FISA warrants are highly classified, who authorized the Chairman to disclose classified information to the press?  Did he violate the law or was he authorized by the President?  My money is on the latter.  If so, does Trump understand that the Chairman is disclosing that his team spoke to foreign agents?  And why does he think this was helpful to disclose?

Finally, should the identity of the Trump transition team members have been masked, as part of the FISA mitigation requirements?   Probably not.  As I explain at greater length in this post,  masking is not required when the name  is necessary to understand the foreign intelligence information in the report.  Given that the counter-intelligence import of the incidentally collected material was that foreign agents were talking to members of the Presidential transition team, their identities would not have been (and should not have been) hidden in any reporting.

My sense is that the Trump team somehow thinks this disclosure helps them revive the quite discredited claim that Obama was spying on the Trump team.  Of course, it doesn't come close to doing this.  All this suggests is that the U.S. was spying on certain foreign officials (which it should obviously do) and that Trump's people spoke to these foreign officials.  Rather than vindicate Trump's false claim, it raises new and disturbing questions about who the transition team were talking to--and why.