President Trump once again denounced the intelligence community in a tweet on Thursday, calling the “big story… the ‘unmasking and surveillance’ that took place during the Obama administration.” He’s harkening back to an oldie but goodie: The so-called scandal in which former National Security Adviser Susan Rice unmasked identities of Trump’s transition team in intelligence reports.
His tweet followed the subpoenas issued on Wednesday by the House Intelligence Committee to the FBI, NSA and CIA, aimed at finding out why Rice and other officials under President Obama made unmasking requests.
{mosads}But Trump should be careful what he wishes for —The Rice “scandal” is actually an example that the system is working exactly the way it should, and what the committee uncovers may only deepen questions about Trump’s connections to Russian intelligence.
“Unmasking” is a term used to describe the decision to reveal the identity of a U.S. person (known as an “USPER” in intel slang) who is “incidentally” caught up in electronic surveillance of foreign entities. Incidental communications, which happen when a target of surveillance — say, a foreign diplomat — is talking with an USPER, are unavoidable. Consider how difficult it would be to understand what was going on in a conversation if you could only hear one side of it.
But since the USPER who is caught on the other end isn’t a target themselves, and also has Fourth Amendment rights, intelligence agencies are required to “mask” their identity if the content of that call is shared outside of that agency.
There is an exception: If the identity of the USPER is “necessary to understand the foreign intelligence information or assess its importance,” it can be “unmasked” upon request of the person reviewing the intelligence. In other words, if you need to know who the person is in order to make sense of the communication, or if the USPER is involved in a crime, revealing the identity of the USPER is allowed.
So unmasking isn’t per se illegal, and really depends on the context and content of that communication. For instance, incidental communications, and the ability to unmask USPERs contained in them, is what allowed the FBI to stop a terrorist plot targeting the New York City subway system and uncover an Al Qaeda cell in Kansas City, Missouri.
Even so, the broad definition of “foreign intelligence information” seems to leave a lot of room for mixed motives, particularly for senior political officials. This is what Trump and other Republicans have seized upon to accuse Rice and others of political bias.
Here’s where some history might be helpful. The first iteration of the Foreign Intelligence Surveillance Act (FISA) came out in 1978, following congressional hearings in 1975 that revealed the FBI and CIA had been illegally spying on U.S. citizens, including Vietnam protesters and civil rights leaders.
In 2008, FISA was expanded to accommodate changes in telecommunications technology, after Congress and the rest of America discovered that the Bush administration had been engaging in warrantless wiretapping for four years following the 9/11 attacks.
In both cases, the law was written with the potential for abuse clearly in mind, and to make sure those abuses could be tracked.
The unmasking controversy to date illustrates these checks in practice. Consider that less than two weeks after House Intel Committee Chairman Devin Nunes (then leading this investigation) revealed he had secretly viewed intelligence reports containing unmasked names of Trump team officials — it was traced back to Susan Rice.
This is because even the national security adviser — the highest-ranking national security official in the United States — doesn’t have the power to unmask an USPER alone. Rather, she has to make a request to the collecting agency, which is logged along with her justification and passed to senior intelligence officials, who review the request and decide whether to grant it. If they do, this would be logged as well, creating a pretty clear trail of who was responsible for the decision. This trail remained after a presidential transition, to be reviewed by an opposing party —and serves as evidence that there is accountability all the way up to the top.
Further, an illegitimate unmasking request would be unsuccessful. For starters, FISA gives special protection for core First Amendment values, like political activity. — so the bar for unmasking anyone touching this area would be especially high. In addition, the FBI, CIA and NSA go through routine internal audits where a bipartisan agency called the Privacy and Civil Liberties Oversight Board reviews how intelligence in shared and reports any abuses to Congress.
Considering their checkered past, these agencies can’t afford to be embarrassed or discredited further. As they well know, most of their power comes from Congress, and Congress can take it away. And since they are the ones left holding the bag if a terrorist attack occurs (as they learned after 9/11), playing politics is not worth this risk.
Not surprisingly, when the House Intelligence Committee reviewed the (classified) basis for Rice’s unmasking request, it found no evidence of wrongdoing. As the committee further presses the intelligence agencies for other unmasking requests, they will only uncover more reasons these requests were made in the first place. Given that these reasons are, by the system’s design, almost guaranteed to be legitimate, the committee’s inquiry will most likely reveal even more questionable contacts between the Trump transition team and Russian intelligence — something the president might prefer to keep under lock and key.
Asha Rangappa is a former Special Agent in the Counterintelligence Division of the FBI in New York City. She is currently an associate dean at Yale Law School. Follow her on Twitter @DeanAsha.
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