FISA Reform

In Defense of Including ‘Unmasking’ Protections in Law

By Stewart Baker
Monday, December 4, 2017, 12:00 PM

The effort to renew Section 702 of the Foreign Intelligence Surveillance Act (FISA) may turn on a partisan fight over the “unmasking” rules that govern the disclosure of U.S. person identities in intelligence reports. Both the House intelligence and judiciary committees have proposed to write those rules into law for the first time. Speaking for many House Democrats, Rep. Jim Himes (D-CT) decried the changes as “all in service of the utter B.S. that there was improper unmasking by the Obama administration.”

Himes may be overstating his case just a bit. We do know that at a time of deep ideological conflict between the outgoing Obama national security team and the incoming Trump team, Michael Flynn’s conversations with Russia’s ambassador were intercepted, Flynn’s identity unmasked or not masked to begin with, and the contents of his call leaked. There’s surprising unanimity about that incident. Most of official Washington agrees that the surveillance and even the Obama officials’ unmasking of Flynn’s identity were lawful.

But no one defends the leak, which may be the single worst partisan misuse of intelligence since the Church committee reforms of the 1970s.

And only a political naif could fail to recognize risk of more such abuses. After all, surveilling Trump transition calls with foreign leaders did two things at once: It served legitimate national security needs and it provided inside information that could be used to undermine the president-elect. Indeed, some of President Obama’s staff may have had trouble separating the two goals; after eight years in power, it would be a surprise if they saw a distinction between protecting the nation’s security and protecting the president’s longstanding foreign policy preferences. But that blurring is precisely why such surveillance poses a risk of partisan misuse, particularly in a transition.

If you doubt the risk of abuse, try putting the shoe on the other foot. The next winning Democratic candidate for president will surely seek to overturn dozens of Trump administration foreign policies. The countries affected by these reversals will no doubt spend the post-election hiatus trying to talk to the incoming transition team, and all of those talks will be legitimate objects of surveillance. Meaning that Trump political appointees will get daily reports on the content of those talks, and the names and private thoughts of the advisers hoping to undo Trump’s policies. See any problem there? I’m guessing that not even Himes would call that risk “utter B.S.”

So why not look for simple ways to reduce the risk? That’s what the House intelligence committee bill does. In fact, it borrows another set of rules drafted for the same purpose: the Gates procedures for intelligence reports that touch on congressional staff and members. The Gates rules have their origin in three simple facts: Congressmen often talk to foreign officials. They are often members of a different party from the president. And they are not political naifs.

So they leaned on Robert Gates, then the director of central intelligence, to adopt special procedures for disseminating intelligence containing their identities to executive branch officials. In the absence of a specific exception, such as consent or a law enforcement investigation, the rules provide, intelligence containing congressional identities may not be disseminated without a request, a justification, and an approval by the director of national intelligence or his general counsel. Apart from the high level of the approval, that’s not different from the standard rules for U.S. identities; what the Gates procedures add is notification of such dissemination to Congress’s leadership.

In short, the Gates procedures protect against political misuse of unmasking by requiring special, high-level approvals and by giving notice to political actors who can be counted on to scrutinize such requests through a lens of partisan skepticism.

That’s what the House intelligence bill does as well. If an unmasking request comes during a presidential transition, and the U.S. person in question is a member of the transition team, the request must be approved not just by the head of the requesting agency but also by its general counsel. And, subject to sources-and-methods concerns, the request must be disclosed within two weeks to the chairman and ranking minority member of the intelligence committees.

The last time I embraced a civil liberties measure, it was the wall between intelligence and law enforcement. That turned out to be a disaster; the wall played a big role in the loss of three thousand American lives on 9/11. So I’m a little gun-shy about endorsing this change. That said, we’ve had the Gates procedures for 25 years without any harm to U.S. intelligence capabilities, and we aren’t adding much risk if we expand their protection to cover events that last about ten weeks every four (or, more likely, eight) years.

As for the details of the bill, one could cavil at the idea of the losing party’s political appointees as protectors of the winning transition team. But disclosure to the bipartisan leadership of the intelligence committees guarantees that both parties will have insight into unmasking requests in this period.

Maybe the flap over unmasking will die down on one side or the other now that Flynn has pleaded guilty. If not, House Democrats and the Senate need to decide what if anything to do about the unmasking question. In my view, the House intelligence committee’s approach is best tailored to the risk of intelligence abuses—or the appearance of abuse—during a transition. And perhaps it will help the medicine go down to note that the first beneficiary of the new rules is almost guaranteed to be a Democrat.