The House Intelligence Committee has reportedly issued seven subpoenas in connection with its investigation of Russian interference in the 2016 election and of the Obama administration’s potentially illegal use of the government’s foreign-intelligence-collection power for the purpose of monitoring Americans — in particular, Americans connected to the Trump campaign and transition.
The news was broken Wednesday afternoon by the Wall Street Journal.
“Unmasking” is the revealing in intelligence reports of the identities of Americans whose communications (or information about whom) have been “incidentally” intercepted during foreign-intelligence-collection operations.
Of course, the fact that a subpoena demanding information is issued does not necessarily mean the information exists. Nevertheless, the issuance of a subpoena implies that the issuer has a good-faith basis to believe it does. On that score, it has previously been reported that the committee’s chairman, Devin Nunes (R., Calif.), has reviewed intelligence reporting and detected instances of unmasking.
The Journal report further indicates that committee subpoenas demand any information related to unmasking requests by Susan Rice and John Brennan. Ms. Rice was President Obama’s national-security adviser (a White House staff position), and, as we’ve noted, previous reporting has tied her to unmasking activities. Brennan was Obama’s director of the Central Intelligence Agency. The CIA is in the business of gathering and analyzing foreign intelligence outside the United States. In that capacity, the CIA routinely makes judgments about whether identities of Americans should be unmasked.
The House Intelligence Committee is investigating both a) Russia’s interference in the 2016 election, an inquiry that entails thus far unsubstantiated suspicions of Trump-campaign collusion, and b) the use of intelligence authorities to investigate the Trump campaign, an inquiry that focuses on whether national-security powers (such as those codified in FISA, the Foreign Intelligence Surveillance Act) were used pretextually, for the real purpose of conducting political spying.
The Senate Intelligence Committee is also conducting an investigation, but that inquiry appears more single-mindedly directed at Russia’s meddling in the campaign.
Under the rules that apply to foreign-intelligence-collection, there is a presumption against revealing the names of American citizens.
Of the seven subpoenas reportedly issued by the House committee, four are said to involve the Russia aspect of the probe. Fox News reports that these subpoenas substantially duplicate information already sought by the Senate committee, and are directed at alleged collusion, at longtime Trump personal attorney Michael Cohen (who has denied campaign interaction with the Kremlin), and at retired General Michael Flynn, Trump’s original national-security adviser. Flynn was forced to resign when it emerged that he provided an inaccurate version of communications with Russian ambassador Sergey Kislyak to senior administration officials, including Vice President Pence.
The three subpoenas relating to the unmasking aspect of the investigation are directed to the CIA, the National Security Agency, and the Federal Bureau of Investigation. As the Fox report elaborates, the House committee has claimed that, while the NSA has been cooperative in making voluntary disclosures, the CIA and FBI have been slow to respond. Hence, the subpoena.
As I have previously explained, the CIA, NSA, and FBI are the investigative components of the 17-component “community” of intelligence agencies. It is those three agencies that collect raw intelligence and that make decisions about what identities should be unmasked. Those decisions are reflected in the content of the polished intelligence reports that are generated from the raw intelligence.
Under the rules that apply to foreign-intelligence-collection, there is a presumption against revealing the names of American citizens. But there are significant loopholes: The names may be unmasked if intelligence officials determine that knowing the identity of an American is necessary in order to understand and exploit the intelligence value of the information collected.
Thus, as I’ve also outlined, it is unlikely that any single instance of unmasking would be found to be a violation of law — and, indeed, it would not violate any penal statute (it would violate court-ordered “minimization” procedures). Nevertheless, were a pattern of unmasking established, divorced from any proper foreign-intelligence purpose, that would be a profound abuse of power in the nature of a “high crime and misdemeanor” — the Constitution’s predicate for impeachment.
Explosive Revelation of Obama Administration Illegal Surveillance of Americans
Fighting the Politicized, Evidence-Free ‘Collusion with Russia’ Narrative
Intelligence Lapses and Double Standards
— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.