FISAgate: The Question Is Not Whether Trump Associates Were Monitored

Andrew C. McCarthy:

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.”

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.

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