In light of how controversial the matter has become, it’s unfortunate to find so much uninformed commentary, especially in cable-TV land, about foreign intelligence collection and its so-called minimization protocols — particularly, the guidelines about revealing, or “unmasking,” the identities of Americans whose communications are “incidentally” intercepted.
The question arises because of reporting — most recently, the coverage of disclosures last week by House Intelligence Committee Chairman Devin Nunes — that the communications of figures associated with the Trump campaign were intercepted “incidentally” by U.S. intelligence agencies because they had some interaction with people connected in some way to foreign powers, principally Russia. The Trump associates subjected to such intelligence-agency monitoring certainly include former national-security adviser Michael Flynn, who was intercepted when speaking with Russia’s ambassador to the United States. In addition, the intercepted individuals probably include at least three others: Paul Manafort, who ran the Trump campaign until being ousted in July (when reports surfaced of payments to him by the former government of Ukraine — a Putin puppet regime); and two others, Roger Stone and Carter Page, who had informal connections to the campaign (but longstanding ties of varying degree to Trump and Manafort).
Nunes’s disclosures further suggest that the communications of others associated with Trump’s campaign (perhaps even Trump himself) were also intercepted. During the press conference, a reporter asked, Nunes, “Was the president [i.e., Trump] included in that incidental collection — his communication?” Nunes responded, “Yes.” Based on the little that has been reported, the interception and handling of these communications seems more disturbing because, according to Nunes, they have nothing to do with any known government intelligence investigations of Russia. Unless there is some legitimate connection to foreign activities, the specter of political spying hovers.
The reported intelligence collection efforts raise four separate questions that are too often conflated in the commentary:
1) Should the communications of Trump associates (all of whom are U.S. citizens, so far as we know) have been intercepted in the first place?
2) Regardless of whether the interception was proper, should the identities of the American citizens have been “masked” in order to protect them from, among other things, being smeared as subjects of government investigations?
3) Regardless of whether masking was called for, should the fact that the American citizens’ communications had been collected and reviewed in connection with investigations — presumably, intelligence investigations, not criminal probes — have been disclosed throughout the “community” of U.S. intelligence agencies?
4) Should that fact have been publicly disclosed, including in leaks to the media? (Spoiler alert: As my use of “leaks” indicates, public disclosure is a major no-no. In fact, it’s a felony no-no.)
Let’s deal with the easy stuff first. There is nothing wrong with incidentally intercepting the communications of American citizens in the course of legitimate foreign intelligence collection. To analogize to routine law-enforcement activity, when police do physical surveillance on a suspect (i.e., when they follow a suspect around), or if they tap the suspect’s phone pursuant to a court order, they will necessarily observe the activities of innocent (and not so innocent) Americans. They cannot be expected to close their eyes to those activities; such observations are not only legal, they are necessary to understand the context of the suspect’s behavior. Indeed, one of the objectives of a wiretap in a criminal investigation is to identify unseen members of a conspiracy.
Thus, as long as there was a valid intelligence purpose for targeting the foreign subjects with whom Trump associates interacted, the interception of the associates’ communications would have been entirely proper.
Of course, any legitimate government power can be abused. If the government’s real objective was to intercept the communications not of the foreigners but of the Trump associates, such that the agencies’ “targeting” of the foreigners was merely a pretext (i.e., they were monitored only because they were in contact with Trump associates, who were the real targets), it could hardly be said that the associates’ communications were intercepted “incidentally.”
If the real objective was to intercept the communications not of the foreigners but of Trump associates, such that the agencies’ ‘targeting’ of the foreigners was merely a pretext, it could hardly be said that the associates’ communications were intercepted ‘incidentally.’
Nevertheless, while such a practice might be deemed abusive, it would not be illegal — the government has nearly limitless latitude to spy on foreigners outside the U.S., and on agents of foreign powers inside the U.S. If the collection is permissible, it does not become impermissible just because the agents realize it is apt to capture the communications of Americans about whom the government is suspicious. Clearly, if the foreign intelligence “target” was really of little or no intelligence interest to the U.S. — if the only real purpose of the collection was to “incidentally” seize the communications of Americans — that would be very abusive. And if such a thing were done to obtain a political advantage because the Americans in question were the opposition party, it would be an impeachable abuse of power. But it would not necessarily be illegal.
The same is true of the question about whether the identities of intercepted Americans should have been “masked” for their protection. As I’ve tried to explain (here and here), unmasking is usually not a violation, because it is a judgment call for which the intelligence agencies have broad discretion.
To go back to our law-enforcement example above, the legitimate objective of investigating a suspect is to understand what he is up to. That’s often impossible without understanding whom he is speaking with, and why. If it’s a money laundering investigation, the agents might not need to know the name of the pizza baker he calls when it’s time to order lunch, but they obviously want the identity of the bank manager he calls to arrange a deposit. In foreign-intelligence collection, it obviously matters whether the American to whom the foreign target is speaking is the pizza man or, say, the chairman of a presidential campaign — or the national-security adviser of an incoming administration.
There is a great deal of gray area between the pizza guy and the American whose identity is manifestly relevant. Thus, the intelligence agency that collects the communication in question has wide discretion to decide whether the intelligence community should know the identity of the intercepted American in order to competently analyze the intelligence.
This is to say that when it comes to the scrutinizing of Americans incidentally caught up in foreign-intelligence collection — i.e., the interception of their communications, the masking of their identities, the dissemination of their communications to a wide array of government agencies — the question is usually not whether there has been illegality. It is whether political power has been abused.
Legal Wrongs versus Political Wrongs
I have been addressing for years this confusion of legal versus political wrongs. It is a confusion I became intimately familiar with as a prosecutor working on national-security cases that arguably should not have been treated as law-enforcement matters.
For the most part, intelligence collection involving foreign threats to national security is a political issue, not a legal one. Here, we are talking about “political” not in the pejorative sense of partisan gamesmanship. We mean “political” in the sense of a power that is properly exercised and overseen by the political branches of government, largely outside judicial review. After all, when U.S. intelligence agencies collect intelligence overseas, they are generally acting outside the jurisdiction of American courts, in connection with aliens who have no claim on American legal protections.
Until 1978, when Congress enacted the constitutionally dubious Foreign Intelligence Surveillance Act (FISA), there was no judicial role in this area. And for all the attention we have paid to it for the last dozen years, FISA addressed only a small slice of foreign-intelligence collection: It was designed as a modest layer of due-process protection for people inside the United States, especially Americans, who were suspected of acting as agents of a foreign power. Despite FISA, the lion’s share of the foreign intelligence mission — namely, the collection of intelligence about people (including Americans) who are outside the United States — was still beyond the domain of the judiciary. It remained the constitutional responsibility of the president, with potential abuses left to Congress, not the courts, to rein in.
FISA was designed for the bygone world that existed before the telecommunications revolution. Nowadays, technological advances in communications networks have made national boundaries irrelevant. Government agencies can effortlessly access millions of communications. Foreign-to-foreign communications may pass through American networks. American communications are routinely captured even though foreign communications are targeted.
This telecom revolution has had the unforeseen consequence of pushing more communications into FISA’s net. This has been controversial: Sensible people do not want FISA’s due-process protections extended to aliens outside the U.S.; but neither do lawmakers want to be seen as reducing the protections afforded to Americans. So there has been a policy compromise: A much bigger slice of foreign-intelligence collection has nominally been brought under the authority of the FISA court. In reality, however, the FISA court rubber-stamps the collection and relies on executive-branch agencies to carry it out, analyze it, and decide (based on “minimization” instructions crafted by the executive branch) what incidentally collected American information may be scrutinized and what American identities should be concealed.
That is, the enactment and subsequent expansions of FISA’s judicial process have not changed the nature of foreign intelligence gathering. It is still a political national-security function beyond the institutional competence of courts; it is not really a judicial proceeding, however much sweeping FISA court orders might make it look like one.
Thus, minimization protocols — protections that are afforded to Americans whose communications are incidentally swept up during foreign-intelligence collection — are very executive-friendly. Those who are claiming that it was illegal for the Obama administration to “incidentally” intercept the communications of Trump associates, and to unmask the identities of those associates for intelligence-analysis purposes, are almost certainly wrong. If there was any plausible foreign-intelligence purpose behind the collection of these communications — and certainly any activities of Russia that might have an impact on U.S interests would justify an intelligence investigation — the seizure and unmasked analysis of the communications would be lawful.
The same is true of the wide dissemination through the intelligence community of unmasked communications. Again, this is a realm of political judgment, not law: the question of who has a need to know particular intelligence information. That is a judgment our system leaves to the president and the top intelligence officials. So if it was lawful for the executive branch to collect the information in the first place, it is lawful to spread the information to any intelligence agent who might assist in its full understanding and exploitation.
Here, however, is the crux of the matter: To claim that something is technically legal is not to say that it is appropriate. Another analogy from law enforcement: Under federal law, any distribution of illegal narcotics is punishable by up to 20 years’ imprisonment. But a judge who sentenced a man to 20 years in jail for merely passing a marijuana joint to the person next to him would be grossly abusing his power. Such a judge should be impeached — the fact that the sentence is technically legal is beside the point.
There is a salient difference between technical legality and political propriety. The Obama administration intelligence community’s monitoring of Trump associates during the presidential campaign may well have been technically legal. But whether it was an abuse of power hinges on whether the investigation(s) that rationalized the monitoring were legitimate. Was there a serious Russian effort to subvert U.S. interests, possibly including the integrity of our electoral process? Were there suspect dealings between Trump campaign officials and Putin operatives? Or was Russia just a pretext to spy on the campaign of the opposition party? Did the Obama administration spread intelligence information to people who did not have a need to know it — including White House officials — in order to facilitate its unauthorized disclosure?
Treatment of Trump versus Treatment of Clinton
At the same time that they appear to have been aggressively investigating Trump associates, the FBI and the DOJ bent over backwards to avoid charging Hillary Clinton with felony mishandling of classified information.
Another highly relevant question: Were the government’s agencies evenhanded in their approach to the two presidential campaigns? We now know that there were extensive, potentially corrupt financial dealings between the Clinton Foundation and foreign governments, including Russia. We know that there were business dealings between Clinton campaign chairman (and former top Obama White House official) John Podesta and entities connected to the Putin regime. We know, moreover, that, at the same time that they appear to have been aggressively investigating Trump associates, the FBI and Justice Department bent over backwards to avoid charging Hillary Clinton with felony mishandling of classified information, among other potential crimes.
So the question is not just whether Trump associates were properly investigated. It is whether the same investigative standards were applied to the Trump campaign and the Clinton campaign.
Patently, there have been crimes committed in this controversy. Whatever the intelligence community learned through incidental foreign-intelligence collection about Trump’s associates and campaign officials was surely classified information. Leaking that information to the media is a serious federal felony. It ought to be investigated aggressively, including by using the grand jury to question under oath the officials who had access to the information and, if necessary, the journalists who published it. Any leakers identified should be prosecuted.
The leaks, however, may be the only actual violations of criminal law.
Still, let’s not confuse a dearth of criminal wrongs with a dearth of misconduct. It is possible that the investigation of Trump officials was a massive abuse of power. It is also possible that the investigation was triggered by good-faith concerns about Putin-regime perfidy, and that the connections of Trump associates to Russian interests are scandalous even if they are not illegal, and even if the Left’s “Russia hacked the election” narrative is a red herring. It is critical for Congress to get to the bottom of these questions, regardless of whether, technically, crimes were committed.