Buckle your seat belts kiddos we are in for a bumpy ride. For the next few months there will be two words that will be inescapable, “Incidental Collection”. In my blog yesterday “Mainstream Media: It is Time to Ante Up” I actually began this conversation when I discussed how carefully crafted the statements refuting the Trump Wiretapping Tweets were and how the media was complicit in not adequately following up with a competent line of questioning designed to ferret out the truth. Additionally, when discussing a March article from the Guardian on James Clapper’s response to the allegations I specifically said, “They go to great lengths to imply that if the FISA warrants targeted an outside entity that had some tie to the Trump campaign, but did not specially name Trump or his associates then James Clapper would be technically correct.” Well thanks to Congressman Devin Nunes yesterday’s blog has been proven correct and the phrase of 2017 will be “Incidental Collection.”
So what difference does it make if the Trump administration was surveilled directly or were incidentally collected via another investigation? Plausible Deniability. If the target of your investigation is potential connections between foreign nationals and Donald Trump or his associates then you do not need to specifically name them in the investigation. Since they are American citizens it actually makes it more difficult to obtain the authorization and looks really bad if it becomes public knowledge and you still have no proof to show for the tax dollars spent… whoop. No it is simply easier to figure out which foreign nationals the Trump team is speaking with or likely to speak with and cast a broad net with a few FISA warrants. You pretty much still get the conversations that you are interested without the messy legal entanglements that come with attempting to investigate your political opposition. If the entire operation goes sideways you can always just claim that your investigation of those foreign nationals required monitoring their communications and it was mere happenstance that they were speaking with members of the Trump transition team. This is how incidental collection become plausible deniability.
While the incidental collection may give some top cover in terms of who may have ordered the investigation into the Trump campaign as well as the scope of the methods used to collect information, it does not provide any justification or excuses for one of the more troubling aspects of this case which is the leaking of classified information and the fact that American citizens who were associates of Trump may have had their identities unmasked. (We know for a fact that General Flynn’s identity was unmasked prior to the leaking of the information that led to his resignation.) Now according to the Espionage Act, when American citizens are incidentally collected as part of the monitoring of a foreign national’s communication there are supposed to be safeguards in place to protect the citizens constitutional rights. These include masking the American citizen’s identity and a process of minimization where you try to reduce the amount of data from the communication that is collected that originates from the American side. Of course if federal authorities have a legal warrant for collection of the American’s communication then those protections are pretty much null and void.
The questions that now need to have answered; Who knew about the investigation? When did they know about it? Which government agency and on whose authority were those American citizens names unmasked? Who leaked the information to the press? While Trump’s tweet about Obama “Wiretapping” his phone may never be proven because of plausible deniability, we can at least investigate and prosecute those that carried out the illegal actions that we KNOW occurred. While many politicians on either side of the aisle were merely pushing around the political football two days ago during the Director Comey Congressional hearing there was one that was already beginning to walk down the path of this investigation. If you watch Congressman Trey Gowdy’s questioning of Director Comey in light of this new revelation you can see that he was already beginning down this path a full two days before anyone else. This new information merits a legitimate investigation; hopefully one in which they do not hand out immunity like Cracker Jack prizes.