Watergate was just a private break-in by private actors. To preclude either Watergate or Cointelpro from ever occurring again, and in response to Justice Douglas’ warnings about illegal uses of electronic surveillance, Congress passed laws to conform surveillance to the twin mandates of the First and Fourth Amendment.
The means our government uses — to protect the First and Fourth Amendment rights of Americans without sacrificing the country’s security needs for information gathering on foreign threats — is a process known as “minimization” and “masking.” The point of the minimization and masking protocols is to insure America’s eavesdropping on foreigners “safeguards the constitutional rights of U.S. persons.” These protocols are not merely internal rules nor discretionary guidelines; they are the necessary legislatively delegated means “required to protect the privacy rights of U.S. persons” provided for by the Bill of Rights of the United States Constitution. Violating these provisions does more than violate mere regulatory restrictions; violating these provisions violates the Constitutional rights of Americans. That is why the law criminalizes such action when taken “under color of law” by rogue agents.
The law imposes criminal sanctions on government officials who “engage in electronic surveillance under color of law except as authorized” by statutes and governing regulations implementing those statutes. This same criminal law makes a person “guilty of an offense” if she intentionally “discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained” in a manner “not authorized” by law. Notably, the law enforcement defense is limited to “law enforcement or investigative officer” cleared to do so by a search warrant or court order. The crime imposes a term of imprisonment up to sixty months in a federal prison. The point of the law criminalizing rogue agents either intercepting Americans’ conversations illicitly or unmasking they identities illegally is to protect against rogue government agents from abusing the most powerful surveillance means ever developed to invade the free speech, free thought, free expression and intimate privacy rights of all Americans.
According to both FBI Director Comey and NSA Director Clapper, no warrant ever authorized the intercepts and electronic surveillance on a member of Trump’s team. Yet, Chairman Nunes reports such intercepts occurred, identifying them as “incidental.” As law professor Glenn Reynolds recently noted, recent reports raise doubts on how “incidental” it was. And now, national security reporter Eli Lake of Bloomberg News reports note that former National Security Advisor Susan Rice unmasked apparently some of Trump transition team members when their communications were caught in America’s Snowden-reported expansive surveillance web. It appears what Snowden warned of — how this wide net of eavesdropping would inescapably be misused by the Hoover-ites in the government — may have come true.
The key question now is simple: what legal basis did Susan Rice have to order the unmasking of Trump team members? If the information was inadequate to justify a FISA warrant (or the Obama White House wanted to keep some members of the intelligence community out of the loop?), what permissible purpose justified the unmasking? How significant is this?
As the minimization and masking protocols compel, the “incidental” information gathered by the NSA spying machine “is legally protected from public disclosure and is to be used only for official purposes of National Security Agency/Central Security Services.” All users with access “must strictly adhere to all classification and handling restrictions.” Sound familiar? Who could ever imagine the Obama foreign affairs apparatus mishandling
Essential aspects of those rules require that intercepted communications “between persons in the United States inadvertently intercepts during the collection of foreign communications will be promptly destroyed unless the Attorney General determine that the contents indicate a threat of death of serious bodily harm.” As for communications that incidentally intercept an American and a foreigner, the “information concerning U.S, persons must be disseminated in a manner which does not identify the U.S. Person.” The only exceptions to this allow unmasking when the communications concern varieties of probable cause of a crime, such as that the U.S. person is working as an agent of the foreign power to engage in criminal conduct, disclosing classified information without authorization, engaged in international narcotics activity, engaged in criminal activity, is the target of hostile intelligence activities of a foreign power, is terrorism connected, a threat to safety, or is an existing senior official. Of critical note, at all times the unmasking must “made by the appropriate approval authority” and must fit a “need for the identity for the performance of his official duties.” Note what is not present: unmasking for partisan aims, political purposes, or personal enmity. To be clear, we don’t know why Susan Rice unmasked these identities, but given the political nature of this case, it is reasonable to question her motives.
Some defenders of Rice suggests she could label anything she wanted of “foreign intelligence value,” under the implementing regulatory protocols and thereby label it “foreign intelligence information” under the statute. The law is not so broad. Instead, the statute requires “foreign intelligence information” be “necessary to” the “conduct” of “foreign affairs” and to the person’s position, and further employs a more limiting specific definition in the regulations in USSID for warrant-less seizures, as necessary to make it constitutional under the 4th Amendment. That definition is limited to criminal conduct type behavior, or its security equivalent. That is why the regulatory protocols give specific “examples of the type of information that meet this standard” of “foreign intelligence value.” What are those examples? Criminal-type behavior or imminent security risks. Why those restrictions? Because that makes it conform to the First and Fourth Amendment limitations on the intercept of Americans’ private political conversations. The examples are not prohibitive of like conduct being included, but it must be like conduct — e.g., criminal-type behavior or imminent-safety risk. Why? So it can be constitutional under the 4th Amendment, because the act of unmasking is an act of invading Americans’ privacy, covered by the 4th Amendment, and political speech in private is a right protected by the First Amendment. This is the biggest mistake the Obama defenders have been making, and reflects their lack of understanding of the law’s Constitutional context and legislative history. Put most simply, neither the 1st Amendment nor the 4th Amendment has a “talking to foreigners” exception.
Hence, the reason Schiff was so shifty on Jake Tapper on Sunday after Schiff read the unmasked intel at the invite of the White House last week. Was it because he saw unmasked identities on conversations that could not fit any of those very narrow, constricted, limited legal circumstances allowed? Susan Rice feigned no knowledge of any “incidental” intercepts just a few a weeks back. Why say so if she thought it never happened and any unmasking was completely legal? (Note: A source close to Rice told CNN reporter Jim Sciutto that “the idea that Ambassador Rice improperly unmasked the identities of Americans is false.)
Regardless, Susan Rice, and the Obama administration, appeared to have often skipped the Constitutional limits on their duties while in office; now might be a good time to buff up on the Fifth Amendment, and the right to counsel. Congress may be calling soon.
Robert Barnes is a California-based trial attorney whose practice focuses on Constitutional, criminal and civil rights law. You can follow him at @Barnes_Law
This is an opinion piece. The views expressed in this article are those of just the author.