On Monday, Bloomberg dropped an explosive allegation to add to the mounting evidence that Trump associates were victims of wrongful surveillance: National security adviser Susan Rice sought the identities of U.S. citizens whose names were masked in intel reports related to the Trump transition. 

The "smoking gun," as Sen. Rand Paul called it, raises the question of how far up the chain of command the Trump surveillance went.

If Rice ordered the so-called "unmasking" of U.S. citizens’ names, did President Obama know about it? Was the unmasking par-for-the-course-surveillance or was it an aberration — and perhaps unlawful?

The answer to the former question will come out in time. Answering the latter mandates a detailed look at the Constitution, statute and relevant regulations.

The Fourth Amendment shields American citizens from unreasonable search and seizure of not only their person or belongings but also their private communications. This is why government officials must make their case to a FISA court if they seek to monitor a citizen suspected of acting as an “agent of a foreign power.”

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These FISA requirements protect U.S. citizens from direct surveillance, but there are also safeguards for indirect surveillance. For example, it is routine for the government to monitor the communications of foreign diplomats. But if, during the process, officials encounter a U.S. citizen taking part in the conversation himself, the government has very specific instructions: minimize your surveillance of the U.S. citizen.

 

At the point of stumbling upon a U.S. citizen, “minimization procedures” come into play. U.S. law (50 U.S.C. § 1801 specifically) defines these minimization procedures as “specific procedures … to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons.”

The accompanying procedures issued by the Director of National Intelligence make two exceptions for when a U.S. citizen’s name can be unveiled or “unmasked” in the course of monitoring a foreigner: (1) where there is evidence of crime or (2) when it is necessary to understand intelligence information.

We know for certain that in the case of former national security adviser Mike Flynn, his name was acquired, retained and disseminated, not only around government but also to The Washington Post. No fewer than nine former or current intelligence officials discussed the matter with the paper. The leaking of this information is a different matter altogether, carrying a possible 10-year prison sentence for a felony conviction.

Leaking aside, what crime did Flynn commit to merit the uncovering of his name? How was his name necessary to understand intelligence? 

The American public deserves this answer. 

And perhaps a bigger question than the surveillance of Flynn, whose situation evokes little sympathy, given his misleading of Vice President Pence and eventual ousting from the Trump administration, is: Why were “additional names of Trump transition team members … unmasked,” according to House Intelligence Committee Chairman Devin Nunes?

What crimes did they commit? How were their names necessary for understanding intelligence?

In the meantime, we are left with clues.

Shortly after Nunes announced that “[d]etails about U.S. persons associated with the incoming administration … with little or no apparent foreign intelligence value, were widely disseminated in intelligence community reporting,” CNN’s Manu Raju reported this: “[s]ome of the communications picked up were Trump transition officials talking about Trump’s family, Intel source says.”

Why in the world were conversations about Trump’s family picked up and potentially unmasked and disseminated around government? This would clearly seem to run afoul of minimization procedures, which are meant to protect U.S. citizens from such surveillance.

The suggestion of wrongful surveillance is compounded when you consider Democratic ranking member of the House Intelligence Committee Adam SchiffAdam Bennett SchiffHillicon Valley: Intel heads to resume threats hearing scrapped under Trump | New small business coalition to urge action on antitrust policy | Amazon backs corporate tax hike to pay for infrastructure Intel heads to resume worldwide threats hearing scrapped under Trump The Hill's Morning Report - Biden tasks Harris on border; news conference today MORE’s trip to the White House Friday afternoon to view the alleged unmasking documents. For days, Democrats had been demanding to see the evidence of wrongful surveillance. Their demands were answered when the Trump administration invited Schiff to the White House to view the information. 

Upon seeing the evidence, Schiff issued a statement that complained about how long it took for him to get the information, but — notably — he did not dismiss the allegations of unmasking. Further, when asked on CNN Sunday about the viewing, he said: "Well, first of all, I can't talk about … the contents of any documents. So at this point, I can't say whether anything was masked or unmasked improperly." 

Really? After endlessly clamoring for evidence of unmasking, Democrats receive it, upon which they refuse to comment further. 

Curious indeed.

The drip, drip, drip of information concerning wrongful surveillance is slowly mounting. And the new suggestion that Susan Rice might have played a part raises concerning questions about how high up potential unlawful unmasking might have gone.

A smoking gun of high-level misconduct? Time will tell, but one thing is for sure: Any American who cherishes our constitutional rights should be sincerely concerned.

 

Kayleigh McEnany is a CNN political commentator who recently received her Juris Doctor from Harvard Law School. She graduated from Georgetown University's School of Foreign Service and also studied politics at Oxford University. Follow her on Twitter: @kayleighmcenany


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