Rice was within legal rights to 'unmask' Trump associates
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As Monday morning dawned, several media outlets broke a story that gave new life to the ongoing political saga surrounding President Trump’s allegations that the Obama administration had “spied” on him (as well as his campaign and transition teams). The reports stated that former National Security Advisor Susan Rice had been the official who had requested the unmasking of the identities of several Trump associates contained in intelligence reports derived from authorized surveillance.

Almost immediately, partisans on both sides leapt to put their spin on the new information, often times without regard for even the appearance of objectivity or factual accuracy. Through the partisan haze and cable news hyperbolic rhetoric, however, one thing has become rather clear: absent some new information, the current reports do not demonstrate that Rice’s actions were illegal, unethical or otherwise inconsistent with existing government protocols.

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If only to recap what the public has learned over the past month, a consensus of sorts has emerged that during the final months of the Obama administration, Trump and/or his associates were caught up in “incidental collection” tied to surveillance of foreign nationals. The nature of that surveillance remains in dispute. Although several outlets, such as Heat Street, the Guardian, and McClatchy have all reported the existence of at least one FISA warrant, most prominent media outlets have still not confirmed that there was ever any FISA warrant that targeted Trump or his associates directly or indirectly.

 

Some have interpreted media reports by The New York Times as suggesting that the surveillance (if any) was actually authorized by Executive Order 12333, which governs surveillance of foreign nationals overseas. Congressman Devin Nunes, chairman of the House Permanent Select Committee on Intelligence, confused the matter even further by seemingly disclosing to the public that he had been provided classified intelligence reports indicating that there was at least one (if not multiple) FISA warrants that had authorized the surveillance in which = Trump and/or his associates had been caught up incidentally.

The legality of that surveillance does not appear to be in dispute. Even Nunes, who has emerged as a defender of the president’s concerns about having been improperly surveilled, has publicly stated on more than one occasion that the targeted surveillance and the incidental collection appear to have been legally conducted.

The focus has instead recently shifted to the issue of “unmasking,” namely the circumstances in which a U.S. person’s identity is revealed to the government officials reviewing the intelligence reports. Without diving too deep into the weeds of exposition, when intelligence analysts review the raw data from intelligence intercepts they understandably see everything coming across their screen, including the identities of U.S. persons who are not the targets of the surveillance order that authorized the collection in the first place. In order to protect the privacy rights of those U.S. persons, the government has imposed procedures for “minimizing” or “masking” those persons’ identities.

The most well-known and publicly available document outlining those procedures is United States Signals Intelligence Directive 18. Pursuant to USSID 18’s procedures, intelligence reports summarizing information derived from the raw data would contain a redaction in place of the identity of each U.S. person. An example would be for the redaction to state “[minimized U.S. person A]”.

Like with anything in the government, there are of course exceptions to the rule, and the rules for “masking” the identities of U.S. persons are no different. Section 7.2(c) of USSID 18 permits the “unmasking” of a U.S. person’s identity if it is necessary to understand the foreign intelligence information or assess its importance. Specifically, this provision outlines several possible justifications upon which the government can rely to claim the unmasking was necessary, such as if the information indicates the U.S. person is an agent of a foreign power, is engaged in the unauthorized disclosure of classified information, may be involved in a crime, or may be the target of hostile intelligence activities of a foreign power.

The authority to unmask is not widely held, and as a threshold matter is necessarily limited to the agency that collected the information itself. During his recent testimony before the HPSCI, National Security Agency Director Mike Rogers stated that only 20 people in the entire agency have the authority to unmask the identities of U.S. persons contained in intelligence reports derived from NSA-collected intelligence information.

This brings me back to the issue of Rice’s conduct. Even in her role as national security advisor, Rice lacked the authority to compel the unmasking of U.S. persons’ identities in the NSA documentation she was apparently provided in the course of her official duties. At most, she could request that the identities be unmasked, and NSA could either approve or deny the request. Even if we were to assume for the sake of argument that the NSA representative detailed to the National Security Council (over which Rice presided) had the authority to grant her unmasking request(s), and if we also assumed that NSA official did not feel it was prudent to seek approval from someone of greater seniority at NSA, Rice would still would have had to convince the NSA official that the circumstances justified the unmasking.

This is the necessary safeguard put in place to minimize (if not outright prevent) the politicization of the unmasking process, and there is no indication that safeguard failed here.

It may ultimately come to pass that new information comes out demonstrating not only that Rice’s unmasking request was strictly politically motivated, but that the decision by NSA to approve it was similarly political. In all honesty, that scenario is unlikely and improbable, but certainly not impossible.

Until that occurs, however, claims that the unmasking was illegal or unethical remain premature and likely erroneous.

Bradley P. Moss is a partner at the Washington, D.C. Law Office of Mark S. Zaid, P.C., where he has represented countless individuals (including whistleblowers) serving within the intelligence community, and is also the deputy executive director of the James Madison Project, through which he has represented media outlets such as Politico, Gawker, Daily Caller, and the Daily Beast in FOIA lawsuits against the Bush, Obama and Trump administrations.


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