How did Obama’s massive surveillance state fail to defend Americans against Russia?

Last week, former CIA Director John Brennan testified before the House Intelligence Committee that the United States knew about potential Russian interference in the presidential election at least as early as last year. While well-publicized investigations are now ongoing about potential contacts the Trump campaign had with Russia, there’s a critical question being ignored: Why didn’t the Obama administration take steps to stop Russian interference in an American election?

As former chair of the National Security Agency and Cybersecurity Subcommittee of the House Intelligence Committee, I engaged in a bipartisan effort with Rep. Jim Himes (D-Conn.) to get the Obama administration to define what “offensive” and “defensive” actions were in the context of cyber warfare. Unlike conventional warfare, there’s no “front” in a cyber war, so learning whether you’re on offense or defense in a given situation is critical. For example, if there is a known threat, does NSA take steps to merely defend against the threat or actively seek to counteract that threat? Despite our efforts to discuss the issue with officials and amend bills on the floor to force the issue, the Obama administration continued to stonewall.

Had the Obama administration decided to clarify when to actively fight a threat and when to defend against one, we could have mitigated the threat of Russian interference in our election process. If the Obama administration had used the tools at its disposal, it’s entirely possible we wouldn’t need the current investigations. They could have cut the Russians off at the pass.

{mosads}The Obama administration’s refusal to define any strategy makes their policy decisions related to intelligence even more baffling — because we have now learned that, not only did they intentionally refuse to counteract the Russian threat, the Obama administration repeatedly used intelligence-gathering tools against Americans.

A few weeks ago, the Office of the Director of National Intelligence released a mountain of documents related to the targeting and minimization procedures used by the NSA. Targeting is how we determine which potential foreign intelligence sources we are monitoring. Minimization is how we restrict the amount of information disclosed from the raw intelligence.

The documents revealed something very disturbing about the so-called Section 702 collection, which is one of the ways the NSA collects internet transactions. I was a big supporter of Section 702 collection while in Congress, but as with all legislation, it’s only as good as the implementation. I was shocked to learn about the Obama administration’s failure to follow Section 702’s targeting and minimization procedures. Not surprisingly, the FISA court reprimanded the government about its “lack of candor” and the “serious Fourth Amendment issue[s]” presented by these Obama administration violations.

Beginning in 2011, the Obama administration cast a wider net than allowed by law. Instead of limiting searches to foreign agents who were targets of investigations, the administration searched for communications about those people—meaning Americans who only mentioned a foreign agent would have their communications accessed and analyzed without any warrant or probable cause. This is an obvious violation of the Fourth Amendment.

Further, these kinds of searches can result in the disclosure of the identities of U.S. citizens collected as part of the raw intelligence. The minimization procedures require the “masking” of the names of U.S. individuals who are incidental to a foreign communication. But we know from Susan Rice and others that the Obama administration repeatedly unmasked the identities of citizens found in raw intelligence. 

Something I would have never imagined would occur in America resulted from this illegal use of intelligence: surveillance tools were likely used on our fellow citizens who were not suspected of a crime. While using methods designed to keep us safe, the Obama administration was trampling on the law and our constitutional rights. While refusing to do anything about the Russian threat they knew was coming, the Obama administration targeted the Trump campaign for surveillance.

We can all hope that no future administration, regardless of party, weaponizes intelligence-gathering against its own citizens for political purposes under the guise of public safety. And we can hope that in this new war — where the battle is in binary code instead of bullets and bombs — that no administration again violates the constitutional rights of Americans.

Lynn Westmoreland served in the U.S. House as a Georgia Republican from 2005 to 2017. He headed the House Subcommittee on the National Security Agency and Cybersecurity.

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