By Robert Romano
“There were occasions when I would receive a report in which a U.S. person was referred to, name not provided, just a U.S. person, and sometimes in that context in order to understand the importance of that report, and assess its significance, it was necessary to find out or request the information as to who that U.S. official was.”
That was former National Security Advisor Susan Rice on MSNBC on April 4 openly admitting that she had in fact been involved in requesting the “unmasking” of the identities of U.S. persons who were caught in intercepts of foreign persons under surveillance.
This confirmed at least partially the April 3 report by Bloomberg View’s Eli Lake that Rice had “requested the identities of U.S. persons in raw intelligence reports on dozens of occasions that connect to the Donald Trump transition and campaign,” citing the accounts of U.S. officials.
That was weeks after Rice had claimed in a March 22 interview with PBS — after House Intelligence Committee Chairman Devin Nunes initially revealed to the American people the inappropriate surveillance that had occurred against the Trump transition after the election — that “I know nothing about this. I was surprised to see reports from Chairman Nunes on that count today.”
It is hard to explain the seeming contradiction without simply concluding that Rice was lying in her March 22 interview. The “unmasking” of the Trump transition in supposed foreign intercepts was not yet public knowledge, and so in a public interview she felt confident in denying any knowledge that Trump transition officials had been swept up in surveillance activities, even though she knew had personally participated in the effort to reveal their identities. How did she know which intercepts to unmask, one wonders?
But perhaps the reason why Rice didn’t think she was doing anything wrong, in unmasking the identities of the Trump officials via foreign surveillance, and then initially lying about it, is because in her eyes, this sort of thing happens all the time.
As Rice later noted in the same March 22 interview, “I think it’s important for people to understand what incidental means. That means that the target was either a foreign entity or somebody under criminal investigation, and that the Americans who were talking to those targets may have been picked up.”
Here Rice was referring to circumstances regulated by USSID 18, rules promulgated for collection, retention and then dissemination of foreign intelligence gathered to and from U.S. persons.
Retaining the communications would have required approval from the Attorney General it was believed that the “contents indicate a threat of death or seriously bodily harm to any person,” under Section 5.4.a. Or the Director of the National Security Agency, under 5.4.d., if it was determined the communications contained “significant foreign intelligence” or “evidence of a crime or threat of death or seriously bodily harm to any person.”
For these U.S. persons to have been included in a report for dissemination could have only occurred if, under Section 7.2.c., the “appropriate approval authority” determined “[t]he identity of the U.S. person is necessary to understand foreign intelligence information or assess its importance” or “[t]he information is evidence that the individual may be involved in a crime that has been, is being, or is about to be committed, provided that the dissemination is for law enforcement purposes.”
These rules are made in accordance with 50 USC 1801(h)(2), under which the Attorney General drafts “procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1), shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance.”
Note, these unmasking procedures of a U.S. person’s communications intercepted in the collection of foreign intelligence require no separate warrant, raising serious constitutional concerns about whether the Fourth Amendment’s prohibition against unreasonable searches is being followed.
These authorities granted to intelligence agencies, if they are to have any legitimacy whatsoever, must be only used in addressing threats to national security and when they involve U.S. persons be handled with the utmost care.
If they are used politically — for example by then leaking that information to newspapers to create the appearance those individuals were foreign agents when they were not — we have entered very dangerous territory. Now, it is reported by Fox News’ Adam Housley and Malia Zimmerman on April 12 that “The House and Senate intelligence committees are expanding their investigation into the so-called ‘unmasking’ controversy… to examine whether other candidates or lawmakers beyond President Trump’s associates were affected.”
One does not need to look far to find examples where political figures have been tarnished in newspapers with turning up in foreign intelligence surveillance.
The case of former U.S. Rep. Jane Harman (D-Calif.) comes to mind, who on April 20, 2009 wound up in a New York Times story has having been unmasked during the Bush administration in the course of a 2005 counterintelligence investigation against employees of the American Israel Public Affairs Committee. At the time of the surveillance, Harman was the Ranking Member of the House intelligence committee.
Why was Harman’s identity being revealed four years after the fact? The Times story cited “current and former government officials” as sources.
Another example everyone will be familiar with is the outing of surveillance of the identity then-incoming National Security Advisor Michael Flynn Jan. 12 in the Washington Post. Flynn had been swept up in a conversation with Russian Ambassador Sergey Kislyak on Dec. 29, 2016. He was unmasked and then that information was used publicly against him to create the appearance of being a foreign agent.
There was Attorney General Jeff Sessions, whose own meeting with Kislyak in his Senate office was revealed by Justice Department officials in a March 1 Washington Post report. Was this more incidental unmasking?
A more recent example is one-time Trump campaign worker Carter Page, who on April 11 was revealed in the Washington Post to have actively surveilled by the Obama administration using a Foreign Intelligence Surveillance Act (FISA) court order. Although slightly different from the “unmasking” procedures above — this did have a warrant — FISA court orders are nonetheless classified. Their being revealed is a serious crime.
Yet another example came a day before the election, reported by Louise Mensch in Heat Street on Nov. 7, 2016, that computer servers connected to Trump Tower had been surveilled under a FISA court order for suspicion of carrying on some sort of foreign transactions with some Russian bank. No charges were ever brought. This was the story that eventually led to President Donald Trump’s tweet accusing former President Barack Obama of spying on Trump Tower.
Later it was revealed by Circa.com reporters Sara Carter and John Solomon on March 8 that indeed the servers connected to Trump Tower had been surveilled with a FISA court order, but that no criminal wrongdoing had reportedly been found.
As an aside, how is it possible that Trump’s computers could be surveilled but when the DNC computer servers were supposedly hacked by Russian government spies nobody could get surveillance or a warrant on the servers there to confirm there was even a hack?
Leaving that aside, it appears all these figures — none of whom have been charged with any crimes thus far — were victims of surveillance being used for political ends to create the appearance that these individuals were foreign agents of some sort.
Even if any of them are later charged with something, it would not justify their identities being revealed in this manner, which can only be viewed politically. In the case of Heat Street, the intent was obviously to influence the elections, to create the appearance of foreign collusion even if there was none.
These disclosures were all apparent violations of 18 U.S.C. Section 798, which prohibits “knowingly and willfully communicat[ing] … or otherwise mak[ing] available to an unauthorized person, or publish[ing] … any classified information … obtained by the processes of communication intelligence from the communications of any foreign government…” And they are being committed with impunity, all to advance a political agenda.
But we shouldn’t be surprised. Not only does this sort of thing apparently happen a lot, it has a long history that must be addressed.
This all harkens back to the worst fears of the Church Committee, which was convened in 1975 to get to the bottom of revelations by Seymour Hersh’s explosive report to the New York Times on Dec. 22, 1974 that the CIA had been engaged a mass, domestic surveillance program against anti-war protestors, members of Congress and other political figures.
On NBC’s Meet the Press on Aug. 17, 1975, Sen. Frank Church (D-Idaho) who had led the committee warned, “If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know. Such is the capability of this technology… I don’t want to see this country ever go across the bridge. I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision so that we never cross over that abyss. That is the abyss from which there is no return.”
It is hard not to worry that, after the revelations of the past weeks, months and years of Edward Snowden revealing the mass NSA surveillance and even Wikileaks more recent disclosures on CIA hacking tools, and now the political use of surveillance recently, that we have not entered the very abyss Church presciently foresaw.
You don’t choose the war, the war chooses you.
President Trump and Congressional investigators may not have set out to take apart this ubiquitous surveillance state, but they should well consider the long-term consequences if they do not.
Robert Romano is the senior editor of Americans for Limited Government.
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