The line between lawful unmasking and political spying — and what comes next

Investigators looking for possible criminality will likely examine leaks, emails, discussions, and timing of unmaskings.

Updated: May 29, 2020 - 5:52pm

The Facts Inside Our Reporter’s Notebook

When my colleague Sara Carter and I broke the story in spring 2017 about a three-fold increase in the search of Americans' unmasked phone records during President Obama's second term, the immediate fear was that a limited tool created for intelligence analysts had been become so widespread that political appointees might use it to target political enemies.

The fear was that if US intelligence increasingly searched phone records of Americans collected by the National Security Agency to learn who they talked with overseas and on what days, it would become more tempting to seek to listen to specific intercepted conversations of political adversaries, i.e. spying on the actual conversations after the fact,

Those fears were realized on Wednesday when documents declassified by acting Director of National Intelligence (DNI) Ric Grenell and made public by two senators showed more than a dozen Obama political appointees sought to unmask more than two dozen intercepted conversations involving then-incoming National Security Adviser Michael Flynn. And that occurred in just the two months between when President Trump won the election and he took office.

Most of the requesters were appointees not career intelligence analysts, and included the likes of Vice President Joe Biden, U.N. Ambassador Samantha Power, Obama Chief of Staff Denis McDonough, two ambassadors and a half dozen Treasury Department officials including then-Secretary Jack Lew.

To illustrate the political ties, one of the requesters listed, then-Deputy Treasury Secretary Sarah Raskin, is married to Democratic Rep. Jamie Raskin, one of Trump's harshest critics in Congress. Fired FBI Director James Comey and ex-CIA Director John Brennan, two more Trump critics, also got in on the unmasking action.

The outrage over the widespread unmasking of Flynn spread quickly. 

"It was the greatest political crime in the history of our country," President Trump declared Thursday in an interview with Fox Business News host Maria Bartiromo. "If I were a Democrat instead of a Republican, I think everybody would have been in jail a long time ago,"

But outrage aside, the question of whether crimes were committed or anyone gets punished depends on facts, lots of them. And they will have to be answered by investigators. One crime is certain to have been committed: an unmasked conversation between Flynn and Russia's ambassador to Washington was leaked to at least two media outlets. Others are far less certain.

Grenell sent the list of unmasking requesters to the Justice Department, providing valuable evidence to John Durham and Jeff Jensen, the two special prosecutors named by Attorney General William Barr to investigate possible crimes committed by investigators in the discredited Russia probe.

Senate Judiciary Committee Chairman Lindsey Graham, Senate Finance Committee Chairman Charles Grassley, and Senate Homeland Security and Governmental Affairs Committee Chairman Ron Johnson also have promised investigations.

"In light of General Flynn’s unmasking by the Obama Administration, the job of Congress will be to perform oversight of these unmasking requests to ensure the process was used for legitimate national security concerns, not reprisals or political curiosity," Graham said Wednesday. “I specifically want to know how many unmasking requests were made, if any, beyond General Flynn regarding members of the Trump campaign team, family, or associates.”

Graham's comment zeroes in on some of the key facts that need to be ascertained. Investigators will need to review the emails, text messages and memos of requesters and possibly interview witnesses to determine whether the unmasking requests were lawful. The key is whether the requester had a valid intelligence reason to possess the name, legal experts say.

If a Treasury official like Raskin or the U.N. ambassador requested the unmasking because they were trying to deal with a foreign official confused by U.S. policy during the transition, that likely would be deemed a lawful intelligence purpose. But if an official requested the information because they personally did not like the incoming Trump administration or wanted to thwart Flynn during the transition through leaking or other means, it could be deemed an act against a political adversary and a misuse of unmasking.

Likewise, if they shared the name of an American or the transcript contents with an unauthorized person, that could be legally problematic.

Those officials who requested access to the late December transcript between Flynn and the Russian ambassador almost certainly will be scrutinized about whether they were a source of the leak to the news media. That is the most likely crime to come out of the unmasking fiasco. The list that Grenell sent to the Senate, however, does not identify which officials sought the ambassador conversation.

A final question for the investigators resides in the policy question about whether unmasking has become too easy to do and therefore infringes on Americans privacy, specifically the Constitution's 4th Amendment protection against unlawful search and seizure. On that front, there are already troubling revelations.

Power, whose name was invoked for hundreds of unmasking requests, testified to Congress she did not make most of those requests attributed to her. That suggests some dangerous looseness in the unmasking system.

The final clue about unmasking and politics resides in the trend lines.

First it is important to understand the law. The NSA is not allowed to intentionally intercept Americans phone calls. But if the agency does so incidentally, it was must keep the name/identity of the Americans minimized or hidden in the databases that are routinely searched by intelligence analysts. Unmasking is a request to eliminate that protection and identify either the phone records or actual conversations of those Americans.

When Carter and I broke the story in 2017, the number of Americans who had their phone records intercepted by the NSA and their call records (metadata) searched unmasked had exploded from more than 9,500 in 2013 to more than 30,000 in 2016. About one out of every six times an Americans phone records was searched, there was a request to search the unmasked contents of the call, the records.

Both grew about the same pace. Meaning the more searches on phone records there were, the more searches there were to find the content of the calls.

Republicans were outraged. And they did something about it. Trump instituted a new policy substantially tightening up the unmasking process and searches of Americans phone records have been cut about in half.

For instance, there were just 14,374 unmasked searches of Americans calls in 2018 and that ticked up in 2019 to 16,692, well below the 2016 levels, according to newly released data from the DNI.

However, the number of times an agency later sought to unmask the name of American that was originally redacted in a final intelligence report has stayed fairly steady. It was about 9,200 in 2016 and reached a little over 10,000 in 2019. So the Trump reforms have not changed that practice much. In fact, it has gone up a bit, concerning civil libertarians.

In a twist of irony, the questions about the conduct of Russia probe investigators have come full circle back to the unmasking of Americans' phone records and their contents, right where they started in spring 2017. But many more facts are needed before history can render a final judgment.

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