Today’s news about Rep. Devin Nunes (R-CA) and his two White House sources has serious implications for all three of them. The implications may be more serious for the ongoing investigation into the Trump campaign’s relationship with Russia. This is far more than a story of intelligence manipulation for political gain. I need to describe some background first, so I will save the most consequential question for last.
Nunes, the House Intelligence Committee chairman, has stoutly maintained that “whistleblowers” informed him of electronic surveillance that swept in President Trump and his associates during the course of eavesdropping operations against foreign intelligence targets—and moreover that their names were not properly masked in the reports. Those facts alone, without further detail, are almost certainly classified as top secret, sensitive compartmented information. So naturally Nunes told reporters as soon as he heard.
This week it emerged that Nunes had met his whistleblowers on the grounds of the White House. That meant he left 1600 Pennsylvania Avenue, caught a ride to the Capitol, held a news conference, and only then drove back to the White House to deliver the ostensibly urgent news to President Trump. Today we learned definitively that the whole performance was a charade.
The intelligence chairman’s sources, according to the New York Times, were a pair of Trump appointees: Ezra Cohen-Watnick, formerly of the Defense Intelligence Agency and now senior director for intelligence at the National Security Council, and Michael Ellis, an assistant White House counsel for national security affairs. They are not just any presidential appointees. National Security Adviser H.R. McMaster recently tried to fire Cohen-Watnick, a holdover selected by his predecessor, Michael Flynn, and Trump himself ordered McMaster to stand down. Ellis, the White House lawyer, used to work for Nunes on the intelligence committee.
If the Times report is accurate, there seem to be two significant breaches of the rules governing classified information. I stipulate that I am not an ideal messenger here, given my role in Ed Snowden’s NSA disclosures, and I also stipulate that news organizations are using classified leaks to track the Russia investigation. But journalists are not generally bound by secrecy regulations, and sometimes we cannot do our jobs without publishing classified facts. This case is different. Three named officials—two Trump appointees and arguably his leading defender on the Hill—appear to have engaged in precisely the behavior that the president describes as the true national security threat posed by the Russia debate. Secrecy regulations, including SF312, the Classified Information Nondisclosure Agreement, do not permit Ellis and Cohen-Watnick to distribute sensitive compartmented information through a back channel to Nunes. This is true, and their conduct no less an offense, even though Nunes holds clearances sufficient to receive the information through proper channels. The offense, which in some cases can be prosecuted as a felony, would apply even if the White House officials showed Nunes only “tearsheet” summaries of the surveillance reports. Based on what Nunes has said in public, they appear to have showed him the more sensitive verbatim transcripts. Those are always classified as TS/SI (special intelligence) or TS/COMINT (communications intelligence), which means that they could reveal sources and methods if disclosed. That is the first apparent breach of secrecy rules. The second, of course, is the impromptu Nunes news conference. There is no unclassified way to speak in public about the identity of a target or an “incidentally collected” communicant in a surveillance operation.
There is no unclassified way to speak in public about the identity of a target or an “incidentally collected” communicant in a surveillance operation.
Two more questions raised today look even more serious to me. One has to do with the main complaint that Nunes aired in his news conference. Even if Trump and his associates were swept lawfully into the eavesdropping operations, he said, their identities should have been masked in the intelligence reports. Under the intelligence community’s “minimization” rules, names of American citizens and green card holders are normally removed and replaced with some variation of “[MINIMIZED U.S. PERSON].” The rules allow for somewhat more specificity. Nunes said he could easily guess the names, even when minimized. That would be true, for example, if a report mentioned a “[MINIMIZED U.S. CAMPAIGN OFFICIAL]” who did business in Ukraine. That may look like a joke, but it’s not. I have seen references in NSA reports to “[MINIMIZED U.S. PRESIDENT].”
There are well-established procedures for the “customers” of an intelligence report to request that the names of Americans be unmasked entirely. The governing standard is supposed to be that the names are essential to understanding the meaning or significance of the report.
This brings me to the second question, which I see as the core disclosure of the Times story (even though the Times does not explicitly mention it). If Nunes saw reports that named Trump or his associates, as he said, the initiative for naming names did not come from the originating intelligence agency. That is not how the process works. The names could only have been unmasked if the customers—who seem in this case to have been Trump’s White House appointees—made that request themselves. If anyone breached the president’s privacy, the perpetrators were working down the hall from him. (Okay, probably in the Eisenhower Executive Office Building next door.) It is of course hypocritical, even deceptive, for Nunes to lay that blame at the feet of intelligence officials, but that is not the central concern either.
If events took place as just described, then what exactly were Trump’s appointees doing? I am not talking only about the political chore of ginning up (ostensible) support for the president’s baseless claims about illegal surveillance by President Obama. I mean this: why would a White House lawyer and the top White House intelligence adviser be requesting copies of these surveillance reports in the first place? Why would they go on to ask that the names be unmasked? There is no chance that the FBI would brief them about the substance or progress of its investigation into the Trump campaign’s connections to the Russian government. Were the president’s men using the surveillance assets of the U.S. government to track the FBI investigation from the outside?
CORRECTION: This piece has been updated to clarify that Ezra Cohen-Watnick formerly served as a detailee from the Defense Intelligence Agency and no longer holds the post.