Takeaways from House Intel Hearing on Russian “Active Measures”

Today’s just-concluded HPSCI hearing provided an informative, remarkably varied tour d’horizon of issues related to Russian interference in the 2016 election.

The biggest headline is likely to be FBI Director James Comey’s decision to publicly confirm that the FBI is conducting a counterintelligence investigation into Russian activities during the 2016 election, including “whether there was any coordination” between the Trump campaign and the Russians. Director Comey promised to “follow the facts wherever they lead” in this probe.

The second-biggest headline is likely to be Director Comey’s statement that the FBI and Department of Justice have “no information that supports [President Trump’s] tweets” alleging that President Obama ordered a wiretap of Trump Tower or induced Britain’s Government Communications Headquarters to spy on Trump’s campaign.

I’ll leave it to others better-acquainted with Director Comey’s thought processes to assess why he chose to divulge the counterintelligence investigation, and to respond to the President’s tweets, at this time and with this degree of clarity. (Ben has just posted some thoughts on the matter here.)

That said, Members’ questions did not focus on those issues. This may be because there is little disagreement about the veracity of the tweets or whether an FBI investigation is warranted. Instead, other topics produced the most interesting and edifying exchanges. Here are a few takeaways on Members’ questions and what they portend for the Committee’s investigation going forward:

Republicans ​remain steamed—rightfully—about the leaking of Mike Flynn’s wiretapped conversations with the Russian Ambassador.

As Lawfare readers are aware, one or more U.S. government officials told the media that former National Security Advisor Michael Flynn was captured on a wiretap discussing sanctions with Russian Ambassador to the United States Sergei Kislyak. As David Kris has explained, the wiretap and the dissemination of the transcript within the U.S. government likely comported with FISA and its minimization procedures. The fact that it was then leaked, however, was clearly illegal.

Many of the Republican Members’ questions at the hearing focused on that leak. They remain angry about it—and, as I’ve argued before, they are right to be. This type of information is inherently sensitive; indeed, it is inherently dangerous because, if leaked, it can “destroy reputations from the cloak of anonymity.” For that reason, criminal laws, minimization rules, and various other internal agency safeguards seek to ensure that U.S.-person information gathered from foreign-intelligence intercepts can never be abused for domestic political purposes.

Those safeguards failed here. Information about Flynn from foreign-intelligence intercepts was illegally leaked in order to undercut him politically.

This isn’t just illegal, or an abuse of authority, though it is both those things—it is also a fundamental breach of the trust that the American people repose in those entrusted with access to raw foreign intelligence. As I put it in a past post: “An implicit bargain underlies our national-security apparatus: Americans entrust their government with these powers on the understanding that they will be used for legitimate purposes alone—and not turned inward against those they are meant to protect. Leaking foreign-intelligence information for domestic political purposes violates this bargain.”

Representative Trey Gowdy (R-SC) made a similar point powerfully in an exchange with Director Comey at today’s hearing. He argued that the American people have “an agreement with their government: “we will give you the tools” to collect foreign intelligence information, but “the government promises to safeguard your privacy.” Similarly, Rep. Tom Rooney (R-PA) described the Flynn leaks as the breach of a “sacred trust” between the Intelligence Community and the public.

In short, this is not a distraction from the “real” issue of Russian interference. The Flynn leak is a grave breach of both important institutional norms and criminal law. The Committee is right to investigate it alongside Russian active measures.

The Flynn leaks have, understandably, fueled Members’ concerns about the mechanisms for “unmasking” U.S. persons’ identities in intelligence reports.

Chairman Devin Nunes (R-CA) and Reps. Rooney and Gowdy probed the reasons why a U.S. person’s identity might be validly unmasked, and how many officials in the government have authority to do so. (Admiral Rogers said today that 20 senior officials in the NSA have that authority with respect to NSA reporting.)

These questions are a logical and appropriate response to the Flynn leaks. Some might protest that the unmasking of Flynn’s identity, assuming that is what occurred here, was likely appropriate under FISA minimization procedures. That is true, but it is an insufficient response given that Flynn’s identity, even if validly unmasked, was later leaked.

In the wake of a politically consequential, illegal leak of U.S.-person information, Members of Congress are right to consider whether the circle of officials who can authorize unmasking should be smaller; whether the constraints on doing so need to be tighter; and whether downstream controls on reports containing unmasked identities need to be tighter.

Members are rightly concerned that the Flynn leak will undercut support for reauthorizing Section 702.

This year, Congress will debate reauthorization of FISA Section 702, an important surveillance authority used to target non-Americans overseas. My view, which I have explained elsewhere, is that Section 702 should be reauthorized with current authorities intact, albeit with measures to increase transparency and boost oversight.

As Representatives Rooney and Gowdy pointed out today, the Flynn leak has made that task harder. To be sure, Flynn’s conversations with the Russian ambassador, who was located on U.S. soil, were presumably captured under Title I of FISA rather than Section 702. But as Rep. Gowdy pointed out today, that is “a distinction with no difference.” Both authorities can result in the “incidental collection” of the communications of an innocent American who is not the target of the surveillance, if that American communicates with the target. And in Flynn’s case, incidentally collected information was leaked to damage an American.

As these members perceive, the resulting loss of trust is not merely a problem for privacy—it also threatens national security. As we argued in our recent Center for a New American Security report on surveillance policy: “Important surveillance powers will be politically sustainable only if the public is persuaded that they are necessary, appropriate, and lawful.” Section 702 is a vital tool for counterterrorism; according to the Privacy and Civil Liberties Oversight Board, “as of 2014, over a quarter of the NSA’s reports concerning international terrorism include information based in whole or in part on Section 702 collection, and this percentage has increased every year since the statute was enacted.” Admiral Rogers noted today that the loss of 702 would “significantly impact” the NSA’s ability to generate the intelligence the United States needs. That the Flynn leak could create, in Rep. Gowdy’s words today, a “headwind” for 702 reauthorization should be worrying for all who support it.

There remain prospects for bipartisanship.

Democratic members’ questions today largely focused on the factual details of possible links between Russia and Trump associates. The resulting exchanges elicited a fair number of “no comments”—unsurprising given that answers from the FBI or NSA Directors would implicate ongoing investigations or classified information. Meanwhile, Republican members, in addition to hammering the Flynn leaks, emphasized that Russia did not hack vote tallies and challenged the Intelligence Community’s assessment of Russia’s motives.

But while members appear to be pulling in different directions, today’s hearing offers reason to hope that the Committee will be able to reconcile these competing interests and complete a credible, bipartisan investigation. Most importantly, Chairman Nunes today reaffirmed that the Committee’s investigation will address all aspects of the Russian influence campaign, including the issues of greatest concern to both Republicans and Democrats: What did the Russians do? Was there any unauthorized surveillance of presidential campaigns? (Even if there was not, it will be salutary to have bipartisan confirmation of that fact.) And who leaked classified information, including about Mike Flynn’s intercepted phone calls to the Russian ambassador? Another encouraging sign is that Chairman Nunes and Ranking Member Adam Schiff (D-CA) have taken a bipartisan approach to recent issues affecting the Committee’s investigation.

This is vital: Ultimately, the degree of bipartisanship will determine whether the facts unearthed and conclusions reached by this investigation, and the concurrent probe by the Senate Select Committee on Intelligence, will be persuasive for Americans of all partisan allegiances. The enduring credibility of the 9/11 Commission Report is the best example of this. Alternatively, if the investigation fragments into majority and minority reports, many Americans will dismiss even well-supported conclusions as partisan.