Even according to a fevered editorial from the Wall Street Journal, the entire alleged scandal involving former National Security Adviser Susan Rice boils down to her request to unmask “at least one” name of a Trump transition official that appeared in finished intelligence reports.
Based on that one name, President Donald Trump on Wednesday claimed in an interview with the New York Times that Rice may have broken the law. “I think the Susan Rice thing is a massive story,” Trump insisted. “I think it’s a massive, massive story. All over the world.”
But the very next day, the GOP’s real motivations intruded on Trump’s claims. Devin Nunes, the chair of the House Intelligence Committee, stepped down from his role overseeing the committee’s investigation of Russian interference in the 2016 election, pending an Ethics Committee investigation into complaints that he leaked classified information to kick off the trumped-up scandal surrounding Rice.
Nunes stepping aside was just the latest evidence that the Trump administration’s very vocal concerns about surveillance gone wild have been less than sincere. The alarm bells are, in fact, an attempt to channel legitimate concerns about the extent of America’s spying to undermine the investigation into Trumpland’s improper ties to Russia and potentially other countries.
The Rice pseudo-scandal goes back to a press conference Nunes held on March 22, in which he claimed that multiple people involved in the Trump transition had been “incidentally” collected by government surveillance and subsequently “unmasked.” That’s a bunch of jargon. What it means is that conversations obtained of legitimate foreign targets—a point Nunes has conceded—either included references to Trump associates or featured Trump associates themselves. Nunes’s press conference came just as Trump was receiving blowback for his debunked claim that former President Barack Obama had “wiretapped” him, and it was immediately suspected that Nunes was providing cover for Trump by claiming that Trump’s team, at least, was caught up in surveillance.
That’s entirely to be expected. After all, as officials from countries around the world discussed changes in U.S. policy the incoming administration might make, they would refer to “Donald Trump” and other officials expected to join his administration by name. Additionally, multiple Trump associates, including his short-lived National Security Adviser Michael Flynn, Trump’s son-in-law Jared Kushner, and even Trump’s son Donald Jr., engaged in conversations with foreign officials about policy. Some of these conversations—such as with the head of a sanctioned Russian bank who had been trained by the FSB, the successor to the KGB—were really sketchy. It is not surprising that their names were collected in intercepts targeting the officials in question.
The names of all these figures would have been hidden—“masked”—in any finished intelligence reports. But if someone reading the reports as part of her job felt she needed to learn the identity of the person in question to fully understand it, she would ask the agency that collected the information to share the name. The agency would ultimately decide whether the request derived from a legitimate foreign intelligence need or not. As David Kris, former head of the National Security Division at the Justice Department, has explained, in some cases intercepts count as foreign intelligence information because of the American involved, as was probably true of Flynn’s discussions of U.S. sanctions against Russia with Sergey Kislyak, the Russian ambassador to the U.S.
The allegation against Rice, then, is that she did just that: She asked for the identity of “at least one” Trump official. Right-wing journalist Chuck Johnson, who allegedly had his own behind-the-scenes role in the transition, has claimed that the names of Blackwater founder Erik Prince and Fox News host Sean Hannity, neither of whom had a formal role in the transition, were also unmasked. Prince allegedly did serve as a go-between with his former Emirates clients and Trump, and has provided mercenary forces to multiple foreign governments. And Hannity conducted an interview with long-time U.S. intelligence target Julian Assange at a time when the intelligence community was (and still is) trying to figure out whether Assange was collaborating directly with Russia or any Trump officials.
Still, that’s just three people. Yet in his public comments on the issue, Devin Nunes has claimed that the collection involves “dozens” of Trump officials.
Nunes apparently got to that number by counting something else: the number of reports sent to the Obama White House in which Nunes could figure out the identity of the American mentioned in a report. That, too, is unsurprising. As documents leaked by Edward Snowden reportedly reveal, the masking used by NSA reports can be absurdly easy to decipher, with references to “minimized U.S. president-elect” and “minimized U.S. president” occurring thousands of times. The way the NSA replaces an American’s name in a report is in no way related to Susan Rice. If Nunes has a complaint about that, he should have taken it up with the agency it remains his job to oversee—a point made by Nunes’s counterpart on the Intelligence Committee, Rep. Adam Schiff.
Instead, Nunes got dealt these documents directly by several figures at the White House so he could have his wacky presser. He publicized the contents of finished intelligence reports, only to run back to the White House to ostentatiously brief the president on something his own aides had first discovered. It was a stunt, not real oversight. (Nunes’s public comments about these reports, which he admitted were “all classified information,” forms the basis of the ethics complaints against him.)
At this point, a series of right-wing propagandists, starting with PizzaGate conspiracist Mike Cernovich, delivered Rice’s name as a target. Given Rice’s outsize role in the conservative outrage over the Benghazi scandal, it’s as if the entire right wing decided to stage a Benghazi reunion to distract from the Russian allegations clouding Trump’s administration.
There are two key feints to Republican efforts to smear Rice. First, Rice is reportedly not the person who unmasked Michael Flynn’s conversation with Kislyak. But the pseudo-scandal attempts to suggest that she leaked Flynn’s name to the Washington Post, whose investigative report on Flynn’s conversations ultimately led to his resignation. The two events—Rice’s unmasking of a Trump official’s name, and the leak of the content of Flynn’s conversation—appear to be completely unrelated. Ironically, this is backed by Nunes’s own claims that the reports he saw had nothing to do with Russia. Finally, the Post story relied on nine sources—Rice may be an accomplished woman, but she could not be all nine sources for that story.
White House officials are by no means the only ones who might have had access to Flynn’s name. As reports describe it, Flynn’s conversation with Kislyak was not read in real time, but rather discovered as Obama officials tried to understand why Russian President Vladimir Putin did not raise a stink when Obama imposed new sanctions on Russia on December 28. Because the CIA and FBI can get raw feeds of intercepts of interest—and both were closely focused on Russian interference in the election by this point—it’s not even clear that Flynn’s conversation was first discovered by the NSA.
Which brings us to the second feint. Among the journalists magnifying this pseudo-scandal, Bloomberg’s Eli Lake is the most credible—and the most useful to the administration. For example, Lake initially reported that an intelligence official, not the White House, had given Nunes the documents used at his press conference. But even as he acknowledged that he let Nunes mislead him, Lake himself offered a misleading spin to the story. “Ever since former NSA contractor Edward Snowden disclosed top-secret documents to the Guardian and the Washington Post, civil liberties advocates, progressives, and libertarians have raised alarms about the ability of U.S. eavesdroppers to circumvent the Foreign Intelligence Surveillance Act,” Lake claimed. “This is through what is known as ‘incidental collection,’ when a U.S. person is on the other end of a communication that is legally monitored by the U.S. government.”
As noted, when spooks target a legitimate foreign target, they suck up any Americans involved in a conversation. That can lead to the exposure of these Americans in two ways. There’s what appears to have happened to Flynn, in which his identity was crucial for understanding the significance of the intercepted conversation. This is troubling but—contrary to Lake and Nunes’s claims—it is not even close to the gravest concern about intelligence collection practices.
Far more troubling is when agencies go back into already collected raw data and look for the communications of Americans by name. While the NSA and CIA are partly limited from doing this, the FBI routinely searches databases for Americans’ conversations, even before opening up a formal investigation. They do so even for cases that have no tie to national security. To understand the risk of this, imagine what would have happened—again, this is routine—if the FBI started investigating Michael Flynn for his failure to register as a foreign agent for Russia and Turkey. They would search their databases and be able to read every intercepted conversation that the FBI had obtained, certainly including his conversations with Kislyak, but also those conversations related to a meeting with Turkish officials about kidnapping a U.S. resident at the behest of Turkey. This “back door search” provides a way for the FBI to obtain damning information on Americans without any probable cause.
And that access is something that Nunes has repeatedly defended. “To keep Americans safe,” Nunes wrote last June, “our Intelligence Community needs to fully employ every tool available to it.” In calling for a straight reauthorization of the law under which the FISA Court has permitted such back door searches, the Trump administration has already backed the practice.
That’s what this pseudo-scandal is all about. Nunes has always been fine if the breathtaking powers of the American surveillance apparatus are directed at Muslims or people he doesn’t know. But when the same tools get used against his buddies, even in the context of an investigation into Russian spying, the Republican propaganda machine squeals as if they haven’t supported such spying all along.
There are reasons to be concerned about the intelligence community’s access to Americans’ data. But the national security adviser unmasking a single official’s name in reports she is expected to read is nowhere near the most urgent of those reasons. And if it’s a crime, it’s a crime that Nunes has long happily endorsed.