Trump must learn he's accountable to Americans: Column

House Intelligence Committee Chairman Devin Nunes made headlines on March 22 by alleging that the U.S. intelligence community had incidentally collected communications of individuals involved in the Trump transition. Nunes’s statements come days after the directors of the FBI and NSA testified before Congress, conclusively putting to rest two of Trump’s recent tendentious allegations: in fact, President Obama did not order a wiretap of Trump’s phone calls and Britain’s GCHQ did not perform such collection at the behest of the United States.

Trump now says that Nunes’s statement makes him feel “somewhat” vindicated.

It shouldn’t.

On Monday, FBI Director Comey confirmed that since July, the FBI has been investigating Russian interference in the 2016 election, including possible collusion with the Trump campaign. So while Comey’s testimony confirmed that Trump is wrong that he was wiretapped, it simultaneously indicated an overwhelming likelihood that some phone calls of someone in the Trump campaign were wiretapped.

Nunes is discussing a distinct type of intelligence collection, however, and vindicates Trump even less than Comey did. The United States targets foreign powers abroad for intelligence purposes, including people with whom U.S. government officials interact while doing their jobs. The U.S. person’s information is “incidentally” collected by virtue of their being in contact with someone who is the target of a FISA warrant, which doesn’t on its own indicate anything untoward about either the individual or the intelligence community. It happens all the time.

But there is a sense in which the president is vindicated by this weeks’ developments: Feeling instinctually unsettled or upset about the collection.

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Almost anyone would be rattled to learn their phone calls had been listened to without their knowledge. Indeed, incidental collection represents a point of real discomfort for many Americans. People focus a lot on incidental collection in the context of the Foreign Intelligence Surveillance Act (FISA), but it occurs the same in regular criminal wiretaps. If you communicate with someone suspected of a crime, there’s a possibility law enforcement might hear your call because they’re monitoring the other person. Any way you slice it, that’s an intrusion into the privacy of someone who isn’t suspected of doing anything wrong. We place additional protections to safeguarding the information of those people, but we all know it’s not failsafe. This is just an area in which we agree that the benefits of being able to collect information against particular people, outweigh the harms to others who are collaterally impacted.

We grant Trump that his instinctive upset — if not his grossly irresponsible tweets and accusations — at thinking someone may have listened to his calls is an ordinary reaction. It’s part of the rational bargain our law strikes between privacy rights and government needs, but no one is expected to be happy when it happens to them.

But this raises important points about the ways the president is alike and different from other Americans. For most other citizens whose information is incidentally collected, the story ends there. That’s not always true of a president.

The president is not an ordinary American, nor are his closest advisers. Regular people don’t have to account for the company they keep or the people with whom they communicate; we don’t do guilt by association in the U.S. The president and his advisers, on the other hand, are vested with an enormous amount of trust. In return, they are accountable to the people for everything they do which might bear on the national interest.

Since Trump has himself raised the issue of this surveillance, he should now fully explain the circumstances. There might be any number of innocent explanations; transition officials routinely speak to foreign counterparts. But when it comes to the Trump team’s contacts with individuals at all related to Russia, the fact of lawful surveillance is not what matters. Instead, what matters is the nature and legality of those contacts. After all, the fact that former National Security Advisor General Flynn spoke to the Russian ambassador to the United States was not what lead to his ouster, but instead the substance of those conversations and his later falsehoods.

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We are at the beginning of a long and fraught process. As Comey has now explained to Congress, an FBI investigation into contacts between the Russian government and the Trump campaign has been ongoing since last summer, and may uncover important new information. That investigation will likely take months, as will the multiple congressional inquiries on the same subject. In short, it will be a long time until we have answers.

There is too much at stake to allow ourselves to be distracted by an undisciplined conversation about surveillance.

To that end, both sides would be well served to scale back the rhetoric. The Trump administration can begin that process, by retracting its accusations that Obama, the FBI, the intelligence community or our allies in Britain undertook any illegal or improper surveillance of American citizens, and with Trump as the nation’s commander in chief explaining why certain types of wiretaps can and should occur. For their part, Democrats can acknowledge the values choice inherent in incidental collection and that the president, while no ordinary person, is still human.

Susan Hennessey is a fellow at the Brookings Institution and managing editor ofLawfare. Michael O'Hanlon, a senior fellow at the Brookings Institution, is the author of The $650 Billion Bargain: The Case for Modest Growth in America's Defense Budget.

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