Don’t Dismiss Concerns about Transition-Period Unmasking (At Least Not Yet)

The aftermath of the 2016 election has spun off yet another divisive issue: Whether White House officials inappropriately requested the identities of Trump transition aides whose names had been “masked” in classified intelligence reports. The kerfuffle over unmasking adds even more to the already heaping plates of congressional investigators currently probing Russian “active measures” and leaks of U.S.-person information collected under FISA.

A bit of background: Last Monday, Bloomberg’s Eli Lake reported that former Obama National Security Adviser “Susan Rice requested the identities of U.S. persons in raw intelligence reports on dozens of occasions that connect to the Donald Trump transition and campaign.” Then, on Wednesday, CNN poured at least some cold water on this, reporting that “Republican and Democratic lawmakers and aides” looking at Rice’s conduct “have so far found no evidence that Obama administration officials did anything unusual or illegal.”

Even assuming, however, that Rice and other officials did nothing unusual or illegal, it is too soon to dismiss the unmasking allegations as a non-story. The reason, broadly speaking, is that patterns of conduct permitted by the rules might nonetheless raise legitimate concerns—particularly during inter-party transitions, a sensitive time for our political system.

How It Works: The Basics

Last Thursday, Bobby Chesney provided a comprehensive primer on unmasking—what, why, and how. Susan Hennessey and April Doss, both former NSA attorneys, offered their own blueprint in the Washington Post. I commend both accounts to readers and will not duplicate them here. For present purposes, these are the key features of the unmasking process:

1. The recipient of an intelligence report can ask the originating agency to unmask a U.S. person’s identity if it “is necessary to understand the foreign intelligence information or assess its importance.”
2. Someone at the originating agency must then approve the request.
3. We know from public testimony that 20 senior officials at NSA can approve unmasking requests.

The key question is whether these rules and procedures should in and of themselves reassure Americans that nothing amiss could have occurred here. To be clear, there is no suggestion of any misconduct or error on the part of the originating agency or agencies involved. And the available evidence suggests that Rice’s requests likely comported with the rules. But that doesn’t mean transition-period unmasking requests are a red herring, for two reasons.

The Standard is Broad and Subjective

The first reason is that the substantive legal standard—whether a U.S. person’s identity “is necessary to understand the foreign intelligence information or assess its importance”—is both broad and subjective, which means that it vests significant discretion in those who apply it.

For that reason, I share Bobby’s instinct that it will be hard to show that any single request was beyond Rice’s discretion. But that is only the beginning of the analysis. Even assuming that each of Rice’s unmasking requests was at least plausibly within her discretion under the applicable laws and policies, it is reasonable to examine how she exercised that discretion.

To put it more bluntly: Even if an official’s requests technically comport with the applicable rules, it’s possible that an official could take advantage of the discretion the rules provide to scrutinize (including by unmasking foreign officials’ chatter about) political opponents. To be clear, I am not suggesting that Susan Rice or any other official did this; CNN’s report, if taken at face value, would suggest that she did not. The point is merely that the existing rules alone don’t necessarily foreclose such a pattern of requests.

To determine whether there is cause for concern, investigators are presumably examining:

• What was the foreign-intelligence justification for each request?
• Was there a pattern in the U.S. persons and countries involved? Did her requests cluster around U.S. persons affiliated with the Trump campaign?
• How numerous were Rice’s requests?
• When did they begin?
• Did they accelerate during the campaign or transition period?
• Were there analogous requests to unmask the identities of Clinton campaign officials?

Policymakers considering whether the process is correctly balancing privacy and intelligence needs might also review whether, in retrospect, an official’s need to see a given identity justified the unmasking’s effect on the U.S. person’s privacy (which, it bears noting, may have been trivial or even beneficial).

Some have suggested that unmasking members of the transition team or potential appointees discussed on intercepts of foreign officials is appropriate because it is “simply the course of business to try to figure out what foreign governments were thinking.” Former NSA and CIA Director Michael Hayden, one of the country’s most experienced intelligence officers, noted Wednesday in The Hill that “it’s not surprising that the departing national security advisor would be interested in” foreign governments’ views about incoming officials.

To be sure, it’s easy to imagine scenarios where such a person’s identity would have legitimate intelligence value not only for the current administration but also, as General Hayden points out, for the incoming team. (For example, if the intercepts reveal some previously unknown ethical lapse or compromising foreign connection.) The challenge, however, is distinguishing cases where the outgoing official is merely “interested” in something said about (or by) a successor from cases where the outgoing official needs to know the identities of those incoming officials to do his or her job. Moreover, an outgoing official’s “need to know” arguably contracts after an electoral defeat, as her role becomes that of a short-term caretaker tasked with ensuring a smooth transition of power.

That modified conception of one’s role would hopefully induce some self-restraint with respect to politically awkward unmasking requests. Inter-party transitions are a uniquely sensitive period in our political system. Context matters: the alleged requests here involved political opponents and immediately followed a hard-fought and, for Democrats, deeply disappointing election. Meanwhile, during a transition foreign officials will naturally discuss the incoming President and possible appointees, meaning that those Americans’ names (and perhaps nonpublic information about them) will appear in signals-intelligence reporting. The risks here are obvious: Even unmasking requests that are defensible under the rules can appear political under the circumstances. And the perception of partisanship in political appointees’ handling of sensitive intelligence information erodes trust in the system, even if it is unfounded or exaggerated. Ideally, outgoing officials, aware of these factors, would forbear from using their authority to request unmasking in a manner that could later be perceived as partisan.

How Much Does the Approval Process Constrain the National Security Adviser?

A second reason why the rules alone do not provide complete reassurance here is that it is unclear how significantly the process constrains the National Security Adviser. Susan and April’s Post op-ed explains the process for granting unmasking requests:

Furthermore, no unmasking decision is unilateral: The system provides checks to verify proper requests, and requests must be approved by the director of the FBI or the director of the NSA, or their designees. Recently, NSA Director Admiral Mike Rogers testified that only 20 senior-level officials in the entire NSA have the authority to approve such requests, which is an indication of how seriously this responsibility is taken.

Bobby argues that this process should reassure Americans that Rice’s requests were proper:

Susan Rice—the National Security Advisor at the time—properly received SIGINT reports. In them, the names of US persons were masked. She requested unmasking under the rules described above. The requests were approved, and the names were then provided.

Could this have been a politicized abuse, in which unmasking occurred despite failure to meet the standard? There are many who distrust Susan Rice, and find that prospect plausible. But note that she cannot have done this on her own. The decision lies with the agency, as noted above. You have to believe that at least one of the twenty decisionmakers (perhaps even the Director) was somehow cajoled into cooperation. (Emphasis added.)

Again, I take no issue with those descriptions of how the process formally works: As explained, Rice would have had to ask the originator of the intelligence (say, the NSA) to unmask the U.S. person, and the request would have had to be approved by one of the 20 people at NSA empowered to grant it.

But what does that approval entail? In practice, how would one dispute the National Security Adviser’s judgment that a U.S. person’s identity will help her understand the foreign intelligence conveyed by a report? Note that the National Security Adviser has access to a wider range of intelligence reporting and other information relevant to this judgment than an official at one IC component—that is, than the person who approves the unmasking.

I suspect that, at a minimum, it would be difficult for an agency official to reject an unmasking request from the National Security Adviser; to tell her, in other words, that she is wrong in her considered judgment that a given piece of information will help her do her job. (General Hayden doesn’t go quite so far, but acknowledges that “a request from the national security advisor would carry great weight.”) If my instinct here is wrong, I encourage readers with relevant experience to contact me and correct the misperception, within the limits of what their legal obligations permit them to say.

Let the Investigations Play Out

To be sure, none of this means that there was any wrongdoing here, or even that anything that occurred is cause for concern. Whether either is true depends on the surrounding facts and circumstances—most of which are classified. What this does mean, however, is that at this point no one outside government knows enough to dismiss this as a non-story.

Congress and the White House, which is conducting its own review, are right to inquire further. The rest of us should reserve judgment until those investigations have played out.