Published by The Lawfare Institute
in Cooperation With
Within the pantheon of Trump administration scandals, the manufactured uproar over “unmasking” came and went quicker than most. It was last spring that White House officials, working in tandem with House intelligence committee Chairman Devin Nunes, laundered intelligence information in an effort to train Americans’ sights on a practice that is routine—if highly regulated—within our national security establishment.
The effort blew up in their faces. The House Ethics Committee opened an investigation into Nunes, who partially recused himself from the Russia investigation. The White House staffer who oversaw the secret political operation has since been fired. Even prominent Republicans, including Richard Burr, the chairman of the Senate intelligence committee, have publicly distanced themselves from the affair.
All’s well that ends well, right?
Unfortunately, the episode’s most pernicious blowback may be yet to come. It now threatens to inflict collateral damage on one of the intelligence community’s most important tools, Section 702 of the FISA Amendments Act (FAA), which is up for congressional renewal this year. In its effort to distract from the Russia investigation while also tarnishing Obama administration officials, the current White House’s tactics may end up depriving our national security professionals of a tool they need to keep Americans safe.
First, some background on the legislation up for renewal. The intelligence community regards Section 702 as one of the most important tools in its arsenal because of what it enables: targeted surveillance of foreigners outside the United States. Identified U.S. citizens cannot be targeted under this authority. But without this law, national security professionals would need court authorization to, for example, read emails between two Syria-based terrorists communicating through U.S.-based platforms, such as Gmail or Yahoo. Among its many successes, intelligence officials say, this tool helped identify a terrorist constructing a suicide vest in Europe, disrupted a proliferation ring and thwarted a plot against U.S. forces in Afghanistan. That’s why the national security establishment has noted that a clean renewal of the FAA, with Section 702 fully intact, is its top legislative priority.
How exactly does Section 702 factor into the uproar surrounding alleged U.S. surveillance and unmasking of Trump campaign officials? The short answer is that it doesn’t.
Any surveillance targeted against an American citizen, a category that presumably would describe any Trump campaign official, would be conducted not under Section 702 but pursuant only to a warrant from the Foreign Intelligence Surveillance Court. And the law expressly prohibits the practice of “reverse targeting”—eavesdropping on, for instance, a Russian government official in a deliberate effort to collect communications with a U.S. citizen.
Nevertheless, administration allies on Capitol Hill have repeatedly obscured those facts, publicly conflating Section 702 authorities with unmasking and leaking, as is alleged to have happened in the case of former national security adviser Michael Flynn. Rep. Tim Rooney, an intelligence committee member, further blurred the lines, claiming:
[I]t’s really gonna hurt the people on this committee and you all on the intelligence community when we try to retain [Section 702] this year and try to convince some of our colleagues that this is really important for national security, when somebody in the intelligence community says you know what? The hell with it, I’m going to release this person’s name because I’m going to get something out of it.
Sen. Mike Lee echoed that sentiment to Breitbart, a key purveyor of the unmasking story: “It is not unreasonable to suggest that it could have happened and it [sic] it does turn out to be true? It will help make the case that we really need to regroup.”
All the while, law enforcement and intelligence officials—including former FBI director James Comey, Director of National Intelligence Dan Coats, and National Security Agency Director Mike Rogers—reminded lawmakers in hearing after hearing this year that the tool is not intended for surveillance of U.S. citizens, while also attempting to disentangle Section 702 from the separate issues of unmasking and leaking. The political narrative, however, has thus far proven impermeable to fact. Rep. Trey Gowdy, a proponent of Section 702, last month summarized the zeitgeist of his caucus, telling Bloomberg: "A lot of my colleagues right now are very skeptical of reauthorizing this because of how little we know about unmasking.” Administration officials privately concede that, in light of this conflation, Section 702 stands little chance for a clean reauthorization later this year.
To be sure, several lawmakers from both parties have long voiced opposition to Section 702 over sincerely held, if misguided, concerns about privacy and civil liberties. But the White House’s manufactured unmasking saga did nothing to assuage those qualms. To the contrary, it has imperiled the renewal of Section 702 by potentially pushing several already-wary legislators into the “undecided” or “no” camps.
White House officials have vocally supported the clean reauthorization of Section 702 authorities. But for their words to mean anything to skeptical lawmakers, the White House must refute the outlandish allegations of politically motivated unmasking, as our national security professionals and congressional voices on both sides of the aisle have done already. That is the only way the White House can protect Section 702 and the security the indispensable tool affords all Americans.