Political opponents have been quick to suggest that Susan Rice committed a crime in her waning days as national security adviser to President Barack Obama in the way she handled intelligence reports related to those close to the incoming president, Donald Trump.
But to have broken federal law, national security experts told The Daily Signal, Rice would have had to purposefully leak such information to the media or knowingly place it in the hands of someone not entitled to possess it.
These experts said Rice likely did not commit a crime by asking to see the names of persons close to Trump whose communications were captured after the election in surveillance of foreigners by U.S. spy agencies.
That’s because, under federal law, government officials such as Rice have broad powers to request and receive information about Americans permitted by eavesdropping rules that civil liberty advocates long have viewed as overly expansive.
“I don’t see any illegal activity here,” said Patrick Eddington, a former CIA analyst who is now a policy analyst in homeland security and civil liberties at the Cato Institute, in an interview with The Daily Signal. “What this does do, however, is raise a larger question, which is whether the U.S. government should be allowed to collect and retain Americans’ data for any amount of time in the course of incidental collection, unless there is a real, legitimate investigative predicate for doing so.”
Under Section 702 of the Foreign Intelligence Surveillance Act, or FISA, intelligence agencies frequently monitor the conversations of foreigners—including officials with allied or hostile countries—in what supporters view as one of the key government tools to keep the country safe.
Americans whose communications are incidentally captured—meaning somebody else was the target—in surveillance of foreigners generally are not named in intelligence reports unless there is a specific request to reveal, or “unmask,” their identities.
Under FISA, the standard required to ask for a name to be unmasked is easy to meet—it has to be necessary to understanding the value of the intelligence—meaning it’s unlikely Rice did not follow the rules if intelligence officials ultimately granted her requests.
“There is a set of procedures in place whenever a policymaker wants to have specific data unmasked to make a determination on its significance and whether further action is required,” Eddington said.
“The only way we really determine if those rules were not followed [in cases involving Trump associates] is when we have all the data out, proper interviews have been conducted, and ideally, there is a public hearing where all of this gets fairly hashed out.”