Is “unmasking” the Republican version of “collusion”: dramatic huffing and puffing in lieu of something truly worth huffing and puffing about?
I wonder. I’ve watched the story closely but I haven’t written about it for a while because I can’t get past a nagging question: Why must we speculate about whether the Obama administration abusively exploited its foreign-intelligence-collection powers in order to spy on Donald Trump’s political campaign? After all, Trump is president now. If he was victimized, he’s in a position to tell us all about it.
When Barack Obama was running for president in 2008, he bashed the Bush administration’s “enhanced” interrogation techniques for high-value terrorist detainees. His campaign promised that there would be a public accounting. When he became president, Obama promptly ordered the declassification and public dissemination of government memos outlining the techniques.
Like many Obama critics, I disagreed with the merits of this decision. But there was no denying the president’s authority to reveal the information. He had objected to what he argued were abusive practices by the intelligence agencies under the guise of national security. As president, he was in a position to expose evidence of the practices, both to back up his allegations and to push for policy changes.
New reporting on the subject by Circa’s Sara A. Carter injects confusion while adding to the unnecessary suspense. Its headline breathlessly proclaims, “Former Obama aide Ben Rhodes is now a person of interest in the unmasking investigation.” Not to pick on Ms. Carter, but . . . no he’s not.
There is no unmasking “investigation” in the commonly understood sense of a law-enforcement probe to determine if criminal laws were broken. The inquiry into unmasking — i.e., the exposure in intelligence reporting of the identities of Americans incidentally picked up in foreign-intelligence collections — is an exercise in congressional oversight. Its principal purpose is to determine whether there should be legislative changes in the laws that govern intelligence-gathering (e.g., Section 702 of the Foreign Intelligence Surveillance Act, which is up for reauthorization soon).
These columns have frequently lamented invocations of the word “investigation” in connection with alleged Trump campaign “collusion” in Russia’s interference with the election. That “investigation,” as we’ve pointed out, is a counterintelligence probe, not a criminal one. Its purpose is to gather information about the Putin regime’s activities in order to thwart its schemes. Yet, the matter has been reported as if its objective were to build a criminal case against Trump.
Well, this is the same thing, from the other side of the political aisle. Rhodes is not a “person of interest.” That’s a law-enforcement term, and a slippery one at that.
In criminal investigations, the technically pertinent terms are “target,” “subject,” and “witness.” They denote a person who, respectively, is likely to be indicted, is under grand-jury consideration for indictment, or has pertinent information but is not a suspect. In the era of 24/7 cable-TV coverage, investigations get outsize attention, so investigators have become reticent about attaching the word “subject,” with its strong whiff of criminal suspicion, to an uncharged person. Hence: the relatively new “person of interest” label.
In its proper context, this translates as: “a suspect we’d rather not call a subject at this early stage.” When the public hears “person of interest,” it understands this to mean “of interest to the police and the grand jury for purposes of an eventual arrest and indictment.” But no one is “of interest” to Congress in that sense. Congress has no prosecutorial power. A House committee cannot charge anyone with wrongdoing.
To be sure, congressional oversight can be a means of holding executive-branch officials politically accountable. Indeed, when the executive branch is controlled by one party and Congress by the other, congressional hearings are often the only way to expose executive wrongdoing. For the most part, though, oversight is about Congress’s main function: legislation. If Ben Rhodes is “of interest” to the House Intelligence Committee, it is on the matter of whether Section 702 ought to be amended, not whether someone should charge him with an offense.
Today, the executive branch and Congress are controlled by the same party. The executive intelligence agencies that Congress suspects of abusing their power are now under the direction of a president aligned with Congress. Plus, that president is the victim of the suspected abuse. So why does this seem like a Whodunit that a handful of Republican lawmakers must fight to solve when Trump has the script ready to hand?
I am perfectly prepared to believe that the real story of the 2016 election was collusion between the Clinton campaign and the Obama administration — particularly, the Justice Department and the intelligence agencies. On that score, the unmasking allegations are alarming.
As I have previously explained, the FBI, CIA, and NSA are our principal intelligence agencies for purposes of collection and analysis. They are very sensitive to privacy concerns regarding Americans who are incidentally monitored, without a particularized warrant. With those concerns in mind, they make decisions about whether the identities of those Americans need to be revealed in intelligence reporting and analysis. They ask, “Is it really necessary to know the identity of an American we’ve stumbled across in order to grasp the foreign-intelligence value of the information we’ve collected?” They err on the side of concealing the identity — not because they are good guys (though they generally are), but because they realize that if they abuse their collection authority, Congress could curtail it, making bad things more likely to happen and intelligence agencies more likely to be blamed.
Our massive “intelligence community” includes many officials who are more on the policy and political side of the spectrum than the intelligence collection and analysis side. Those officials are consumers, not generators, of intelligence reporting. When they request the identities of Americans masked in the reporting, that raises red flags. It means these officials are second-guessing the intelligence agents who actually conduct the investigations and grapple with unmasking issues. And it is always possible that a political/policy operative — say, an official on the White House staff, where Rhodes worked as deputy national-security adviser — will have a political motive, rather than a national-security reason, to pry into masked identities.
On the other hand, it is also possible that these officials are just doing their jobs conscientiously. They may actually perceive a national-security angle that eluded the primary intel agencies and that makes knowing the American’s identity more essential than those agencies previously appreciated. Their motive for unmasking may have nothing to do with politics.
It is not a crime to unmask the identity of an American. It is a discretionary call, even if we would think it bad judgment under the circumstances. Thus, the question here is almost certainly not whether criminal offenses were committed. It is whether power was abused.
The question here is almost certainly not whether criminal offenses were committed. It is whether power was abused.
To answer that ultimate question, we need answers to several preliminary questions: Who did the unmasking? Were these officials in jobs that generally do not involve unmasking decisions? If yes, was there anything unusual going on that would justify the sudden change? Who was unmasked? Were unmasked Americans in the opposition party’s campaign? Was there a supporting rationale for the unmaskings that related to national security? Was there an unusually high number of unmaskings? Were there unmaskings of people related to each other in some way, such that we should suspect they were targeted rather than incidentally monitored? Was there any correlation between unmaskings and leaks to the media?
It is only natural that the House Intelligence Committee is asking some of these questions, since there has been plenty of smoke in media reporting: claims of a spike in unmaskings coterminous with the 2016 election season and its aftermath; suggestions that Trump-campaign officials were unmasked, and that reasonable suspicions about collusion in Russia’s perfidy do not explain all the unmasking; and allegations that unmasking was sought by such officials as Rhodes, National Security Adviser Susan Rice, and Samantha Power, Obama’s ambassador to the U.N. — officials known to be close political advisers to the president and whose formal responsibilities were ostensibly remote from involvement (or at least, routine involvement) in unmasking judgments.
All that said, though, a congressional committee can only ask the questions, it cannot answer them. The legislative track-record for getting responses out of executive intelligence agencies is, shall we say, uneven.
The Trump administration, in marked contrast, could answer all these questions forthwith. So, the even bigger question is: Why don’t we have the answers? Why are we left to speculate?
The poisonous thing about the Trump-Russia “collusion” controversy is that it appears to be more a political narrative than a real collaboration in serious malfeasance, notwithstanding the president’s penchant for acting like a guilty man. Is “political spying,” similarly, a narrative — just from the other side? At a certain point, don’t we have to wonder whether the people with access to the relevant information have decided they are better served by innuendo than disclosure?
— Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review.