The Latest Wiretap "Bombshell" Turns Out To Be Another Dud

Right-Wing Media Scandalize Report That Susan Rice Allegedly Asked For Legal Unmasking Of Trump Officials Found In Intel Reports About Russians

››› ››› NICK FERNANDEZ

On April 2, alt-right media figure Mike Cernovich reported that former national security adviser Susan Rice requested the unmasking of Trump officials. The next day, Bloomberg’s Eli Lake confirmed that Trump administration lawyers accused Rice of requesting “the identities of U.S. persons in raw intelligence reports on dozens of occasions that connect to the Donald Trump transition and campaign.” Right-wing media figures quickly ran with the report as a “BOMBSHELL,” but according to numerous legal and national security experts, “Rice’s actions are likely legal.”

Bloomberg’s Eli Lake Claims Rice Made Request To “Unmask” Identities Of Trump Transition Officials In Intelligence Reports

“Alt-Right” Activist Mike Cernovich First Claimed Rice Requested “Unmasking” Of Trump Officials. Mike Cernovich wrote in an April 2 post on Medium that he can “exclusively report” that the “White House Counsel’s office identified Rice as the person responsible for the unmasking after examining Rice’s document log requests. The reports Rice requested to see are kept under tightly-controlled conditions. Each person must log her name before being granted access to them." [Medium, 4/2/17]

Bloomberg: “Susan Rice Requested The Identities Of U.S. Persons In Raw Intelligence ...That Connect To The Donald Trump Transition And Campaign.” Bloomberg’s Eli Lake published a piece reporting Susan Rice “requested the identities of U.S. persons in raw intelligence reports on dozens of occasions that connect to the Donald Trump transition and campaign” only later clarifying that the former national security adviser’s requests do not vindicate Trump’s wiretap claim. Lake explained “The standard for senior officials to learn the names of U.S. persons incidentally collected is that it must have some foreign intelligence value, a standard that can apply to almost anything. This suggests Rice's unmasking requests were likely within the law.” From Bloomberg (emphasis added):

White House lawyers last month learned that the former national security adviser Susan Rice requested the identities of U.S. persons in raw intelligence reports on dozens of occasions that connect to the Donald Trump transition and campaign, according to U.S. officials familiar with the matter.

The pattern of Rice's requests was discovered in a National Security Council review of the government's policy on "unmasking" the identities of individuals in the U.S. who are not targets of electronic eavesdropping, but whose communications are collected incidentally. Normally those names are redacted from summaries of monitored conversations and appear in reports as something like "U.S. Person One."

[...]

Rice's requests to unmask the names of Trump transition officials do not vindicate Trump's own tweets from March 4 in which he accused Obama of illegally tapping Trump Tower. There remains no evidence to support that claim.

But Rice's multiple requests to learn the identities of Trump officials discussed in intelligence reports during the transition period does highlight a longstanding concern for civil liberties advocates about U.S. surveillance programs. The standard for senior officials to learn the names of U.S. persons incidentally collected is that it must have some foreign intelligence value, a standard that can apply to almost anything. This suggests Rice's unmasking requests were likely within the law. [Bloomberg, 4/3/17]

Right-Wing Media Scandalize Reports As A “Bombshell”

Fox News Correspondent Adam Housley Reports On “Multiple Sources” Telling Fox Susan Rice “Requested To Unmask The Names Of Trump Transition Officials.” Fox correspondent Adam Housley reported on the April 3 edition of Fox’s America’s News HQ, “multiple sources" tell him that Susan Rice “requested to unmask the names of Trump Transition officials":

ADAM HOUSLEY: Multiple sources tell Fox News the former national security advisor under President Obama, Susan Rice, requested to unmask the names of Trump transition officials. The unmasked names, people associated with Donald Trump, were then sent to the NSC, some at DOD, James Clapper, John Brennan, basically to people at the top, including former Deputy National Security Advisor Ben Rhodes. Now, these names were part of incidental electronic surveillance of candidate and President-elect Donald Trump and people close to him including family members for up to a year before he took office. When the names of Americans now are incidentally collected, they are supposed to be masked, meaning the name or names are redacted from reports, whether it’s international or domestic collection, unless it's an issue of national security, crime, or their security is threatened in any way. There are loopholes and ways to unmask these through back channels, but Americans are supposed to be protected from incidental collection. Our sources say in this case, they were not. [Fox News, America’s News HQ, 4/3/17]

Fox News Contributor Tammy Bruce: “Bombshell Report: Susan Rice Responsible For ‘Unmasking’ Of Trump Officials.”

[Twitter, 4/3/17]

Daily Wire’s Ben Shapiro: “BOMBSHELL REPORT: Obama National Security Advisor SUSAN RICE Behind Unmasking Of Trump Transition Team.”

[Twitter, 4/3/17]

Fox’s Brit Hume: “Who Can Be Surprised At The Emergence Of Rice As A Player In This Drama?”

[Twitter, 4/3/17]

Hugh Hewitt: “So Eli Lake Gets The Scoop: Susan Rice At Center Of Unmasking.”

[Twitter, 4/3/17]

Fox’s Pete Hegseth: “He [Trump] Was Right! SURVEILLANCE Team Trump Exposed Thnx [Thanks] To Real Reporting By Folks Like Adam Housley & Eli Lake.”

[Twitter, 4/3/17]

Legal And National Security Experts Explain That Nothing In The Report Indicated Illegal Or Even Nonstandard Activity

Lawfare’s Susan Hennessey: “Nothing In This Story Indicates Anything Improper Whatsoever Nor Does It Explain Or Justify Nunes’ Bizarre Conduct.”

[Twitter, 4/3/17]

Foreign Policy Research Institute’s Nada Bakos: Nothing “Odd Or Wrong” With Rice’s Actions.

[Twitter, 4/3/17]

Former CIA Acting Director Michael Morrell: “Senior Officials In The U.S. Government … Can Go Back To NSA And Ask, ‘Who Is That Person?’ They Have To Have A Good Reason For Asking That Question.” Former acting CIA Director Michael Morrell noted that, “The unmasking of the names of U.S. persons happens all the time.” Morrell explained that “Senior officials in the U.S. government” can view intelligence reports “and ask, ‘who is that person?’ They have to have a good reason for asking that question, and they have to explain that reason to NSA. Once the request is made, NSA says yes or no. … And when that gets approved, it only gets approved for the individuals who specifically requested the unmasking. It is not unmasked broadly.” From The Cipher Brief’s March 23 interview (emphasis original):

TCB: What about the issue of “masking,” which Chairman Nunes talked about at length?

When incidental collection gets gets disseminated, the identity of the U.S. person is usually – but not always – redacted, or masked. If it’s anybody but a senior most official of the U.S. government, it is masked. It’s masked by saying, “U.S. person 1, U.S. person 2, U.S. person 3,” depending how many U. S. officials were referenced in the disseminated report.

So [a report], in the first type of incidental collection might say something like “intelligence target, in a conversation with another intelligence target, talked about U.S. person 1.” They don’t name the person.

Or, in the second type of incidental collection, a report could say “intelligence target, in a conversation with U.S. person 1, said the following.”

That’s for most U.S. persons. But, for the senior most people in the U.S. government, like the President of the United States and probably the President-elect of the United States, they don’t mask those names. You see intelligence reports all the time with foreign intelligence targets having a conversation about the President of the United States, and the President is not masked to be U.S. person 1 or U.S. person 2. The President is just said to be the President of the United States.

It is quite possible that these are some of the reports that Chairman Nunes saw. And there would be nothing inappropriate about that.

TCB: It does raise the question of unmasking U.S. persons – although Congressman Schiff says Nunes told him most of the names were masked, but Nunes was able to figure out for himself who it involved. Is there anything irregular or improper here?

MM: The unmasking of the names of U.S. persons happens all the time too. And, the unmasking is a whole different process.

Senior officials in the U.S. government, when they see one of these intelligence reports that say U.S. Person 1 or U.S. Person 2, can go back to NSA and ask, “who is that person?” They have to have a good reason for asking that question, and they have to explain that reason to NSA. Once the request is made, NSA says yes or no. There’s only a small number of people at NSA — I think [NSA]Director Rogers said 20 the other day on the Hill — 20 people at NSA can actually approve an unmasking. And when that gets approved, it only gets approved for the individuals who specifically requested the unmasking. It is not unmasked broadly. [The Cipher Brief, 3/23/17]

Lawfare: An American’s “Name Can Be Used When It Is Necessary To Understand The Foreign Intelligence Information In The Report.” Lawfare’s David Kris wrote that “a U.S. person’s name can be used when it is necessary to understand the foreign intelligence information in the report,” adding that, “no serious argument can be made that Flynn’s identity was not necessary to understand the intelligence significance of his call with” the Russian Ambassador to the United States. From the February 14 article (emphasis original):

Wiretaps do indeed require minimization—but generally only to the extent “consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.” In some cases, when an intelligence agency issues a report based on a wiretap, minimization requires the issuing agency to substitute a generic reference in place of a U.S. person’s name—e.g., “Ambassador Kislyak said that he was looking forward to watching the Grammy Awards on television and that he was hoping that [U.S. Person] would win an award.”

But a U.S. person’s name can be used when it is necessary to understand the foreign intelligence information in the report, and no serious argument can be made that Flynn’s identity was not necessary to understand the intelligence significance of his call with Ambassador Kislyak. The call is foreign intelligence information mainly because it involves Flynn.

[...]

One example [of a situation in which a U.S. person’s name could be disseminated in an intelligence report] would be the identity of a person who is the incumbent of an office of the executive branch of the U.S. Government having significant responsibility for the conduct of U.S. defense or foreign policy, such as the Secretary of State or the State Department country desk officer. The identifiers of such persons would frequently satisfy the “necessary to understand” requirement, especially when such person is referred to in the communications of foreign officials.

Flynn was not the incumbent at the time of the call, but the logic still applies. In short, this is not a close call. [Lawfare, 2/14/17]

Lawfare: “Given The Multi-Pronged Exception Set Forth By Statute,” Legality Of Unmasking Depends On If An American’s Identity “Is Itself Foreign Intelligence, Necessary To Understand Foreign Intelligence, Or Evidence Of A Crime.” According to former Department of Justice official Nima R.T. Binara, information included in intelligence reports originating from incidental collection on an American citizen “that (1) meets the statutory definition of ‘foreign intelligence,’ (2) is necessary to understand foreign intelligence (as Kris highlighted on Tuesday), or (3) is evidence of a crime, … does not have to be masked.” Binara concludes that “given the multi-pronged exception set forth by statute and described above, the real question is whether that hypothetical ‘American caller’s identity’ is itself foreign intelligence, necessary to understand foreign intelligence or evidence of a crime.” From the February 16 article:

Specifically, the FBI, CIA, and National Security Agency each operates under FISA “minimization” procedures that establish protections over the retention and dissemination of US persons' private information. Nonpublicly available information of an unconsenting US person cannot be disseminated without all identifying information being masked, or “minimized.” Minimization, in turn, is subject to extensive executive and judicial oversight.

There is, however, an important exception for US person information that (1) meets the statutory definition of “foreign intelligence,” (2) is necessary to understand foreign intelligence (as Kris highlighted on Tuesday), or (3) is evidence of a crime. US person information that falls into one of these buckets does not have to be masked. The law does not require that the USIC turn a blind eye, nor should it. The USIC can use and disseminate pursuant to the minimization procedures this “unminimized” information, including the identity of a US person, if the standard is met as to that information.

A caveat, of course, is that dissemination is only permitted to recipients who need that information in the performance of their official duties. The public disclosure of such information is a wholly separate issue, beyond the scope of this article.

Congressman Devin Nunes (R-CA), chair of the House intelligence committee, asserted that the “big problem I see here is that you have an American citizen who had his phone calls recorded.” And Congressman Mike Johnson (R-LA) faulted the USIC for traversing “steps to protect the identity of the American caller.” Yet with respect to the USIC using Flynn’s unmasked identity for intelligence purposes, this use is appropriate subject to the above-described minimization procedures.

[...]

In short, given the multi-pronged exception set forth by statute and described above, the real question is whether that hypothetical “American caller’s identity” is itself foreign intelligence, necessary to understand foreign intelligence, or evidence of a crime. [Lawfare, 2/16/17]

ThinkProgress: “Rice’s Actions Are Likely Legal And Probably Do Not Even Raise Privacy Concerns If The Individuals Were Part Of The Trump Transition Team.” ThinkProgress explained that “The unmasking of unidentified Americans in intelligence reports is within the scope of the job of a national security advisor” going further to say “Rice’s actions are likely legal and probably do not even raise privacy concerns if the individuals were part of the Trump transition team.” From ThinkProgress:

The unmasking of unidentified Americans in intelligence reports is within the scope of the job of a national security advisor like Rice. According to Kate Martin, a senior fellow at the Center for American Progress, Rice’s actions are likely legal and probably do not even raise privacy concerns if the individuals were part of the Trump transition team. (ThinkProgress is an editorially independent news website housed at the Center for American Progress).

When an American’s identity in a classified intelligence report is unmasked, only those who have a security clearance and the authority to view the classified information may see the unmasked report, Martin said. The information may not be shared with individual members of Congress, let alone outside the government.

Conversations by foreign government officials are routinely surveilled, and those speaking with ambassadors should expect that their conversations may be wiretapped.

Given Russia’s involvement in the U.S. election, it’s not surprising that Rice would look at intelligence reports on Russia, including conversations by Russian Ambassador Sergey Kislyak. If those conversations were with Americans, it follows that Rice would ask for the names to understand more about the conversation. [ThinkProgress, 4/3/17]

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