This week, multiple news outlets reported that Susan Rice, former national security adviser to Barack Obama, had made several requests to “unmask” the names of Donald Trump's transition team members from intelligence reports, in order to reveal their redacted names. But while several politicians and pundits have called conspiracy, the reality is likely much more mundane. There's no fire here. There's barely any smoke.
The uproar over the Rice reports---senator Rand Paul (R-KY) went so far as to call it a “smoking gun”---has escalated to the point that at least one senator demanded she testify under oath. On Wednesday, Trump escalated the rhetoric, telling the New York Times in an interview that he thinks she had committed a crime, adding that "it is one of the big stories of our time.”
All of this outrage relies on a surface-level understanding of how US surveillance works, and Rice’s previous role in that process. It’s secretive, complicated stuff---which makes it all the more important to get right.
Understanding the allegations against Rice, and why they’re dangerously overhyped, requires a very quick stroll through the last several weeks of President Donald Trump’s claims that the intelligence community, at Obama’s direction, spied on him throughout last year’s campaign.
Exactly a month ago, Trump tweeted that Obama had wiretapped Trump Tower. Lacking any evidence to support that specific claim, White House officials secretly shared unrelated intelligence reports with House Intelligence Committee Chair Devin Nunes, who obligingly relayed their existence to the media. The classified report Nunes presented amounted to vague claims of "incidental collection," ostensibly intended to lend credence to Trump's original claims. Nunes shared with the press, among other things, his alarm that the real names of certain Trump transition team members appeared in the report, rather than “US PERSON 1” or some similar anonymizing label---a practice known as "unmasking."
So much to unpack, already! First: A US citizen’s name appearing in an intelligence report does not mean that person was the target of a surveillance operation. They’re more likely to have been on the other end of a phone call or email with a foreign national, one that the intelligence community believes to have some sort of value, and received clearance under the Foreign Intelligence Surveillance Act to surveil. People like, say, the sort of diplomats and foreign officials with whom the Trump transition team would have communicated extensively. It’s known as “incidental collection,” and it’s both totally legal and completely unsurprising.
In cases of incidental collection under FISA, the agency who garnered the material automatically “masks” the names of any US citizens. Masking provides an important Fourth Amendment safeguard---but it’s also not an inalienable right.
“The most commonly used standard by which a national security official can ask for a US person named to be unmasked is: Is the identity necessary to understand the foreign intelligence value of the information?” says Carrie Cordero, a national security lawyer who has worked directly on FISA process issues.
Frequently, it is. According to a the intelligence community's 2016 transparency report, in 2015 the NSA issued 4,290 reports that included identifying information about US citizens under FISA’s Section 702, which allows for surveillance of non-US individuals. In 1,122 of those cases, the agency ultimately unmasked the information.
“This is a standard practice,” says Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program.
There’s nothing inherently suspicious about incidental collection, and unmasking happens with decent regularity. The only potential scandal that could erupt from some such practices would relate to who requested the unmasking, and why? Which brings us to Susan Rice.
It’s easy enough to see how a senior Obama administration official requesting the unmasking of Trump associates could cause a tempest. But less so when you consider the specific associate.
“The national security advisor, every day, as part of the National Security Council, gets a compilation of intelligence reports every morning,” says Goitein. “To the extent that the reports include US person information that has been masked, per standard procedure, you would certainly expect the people who received those reports to be among the people who are requesting the unmasking.”
That aligns with a brief interview Rice gave to NBC’s Andrea Mitchell. “There were occasions when I would receive a report in which a US person was referred to, name not provided,” Rice said. “Sometimes in that context in order to understand the importance of that report, and assess its significance, it was necessary to find out or request the information as to who that US official was.”
All of which, again, isn’t just legal. It’s routine, especially for someone in Rice’s position at the time.
“There’s certainly nothing illegal about it,” says Cordero. “The decision to request an unmask is a judgment call based on an individual’s national security responsibilities, and their need to understand the context.”
It's also not "leaking," as some pundits have characterized it. Unmasked intelligence reports are still intended to remain within a relatively small circle of intelligence officials. There's no presumption that the names will eventually become public. In fact, in this instance, the public only knows about the unmasking in the first place because the White House told Nunes that it had occurred and he went to the media with it.
There’s also a distinction, which seems to have been lost in the furor, between requesting an unmasking and receiving approval. Rice herself can only ask; as NSA head Mike Rogers testified before the House Intelligence Committee last month, only 20 individuals within the agency are authorized to approve those requests.
“They receive specific training, there are specific controls put in place in terms of our ability to disseminate information out of the databases associated with US persons,” Rogers said at the time. What that means is that the NSA itself agreed that the instances in which Rice requested unmasking warranted that action.
Looking through the fog of all these unfamiliar practices and terms can be exhausting, and it's easy to see how, without a clear view, the routine could seem nefarious. But just as Trump or his associates being named as part of incidental collection doesn’t indicate any wrongdoing on their part, neither does asking for unmasking to better understand intelligence reports---when you’re the national security adviser, no less---point to any kind of grand conspiracy.
What’s slowly emerging from the Rice accusations isn’t a smoking gun at all. It’s the gears of bureaucracy, grinding as confoundingly in spydom as it does everywhere else.
This story has been updated to include comments Donald Trump made to the New York Times Wednesday.
