Wouldn't it be wonderful if Reason, not beholden to either the Donald Trump administration or the previous Barack Obama administration, could tell you exactly what to take away from Eli Lake's Bloomberg report that former National Security Adviser Susan Rice requested the names of American citizens who showed up in foreign intelligence reports connected to the Trump transition team?
The reality is, beyond the blustering politically motivated outrage from one side and the politically motivated cool dismissal from the other (you can guess which side is which), it's tough to interpret even basic facts here, and that's part of the problem. Lake has been careful with his reporting on the various controversies and agendas coming into play in this heavily politicized fight. Yet even he got tripped up when Rep. Devin Nunes misled him and said the White House was not the source of the classified info that the private communications between Trump's team and foreign officials had been incidentally collected. Subsequent reporting from The New York Times determined that the sources were indeed in the White House.
What we can say is that, assuming that Rice did indeed request the names be unmasked, there are a number of potentially legitimate reasons for her to have done so (particularly if there's an investigation into potential criminal behavior by the foreign targets of surveillance) and it was likely legal. It also doesn't mean that she must have been responsible for leaking anything that she saw. This afternoon she denied leaking any information in an interview with MSNBC.
But if there's distrust of Rice's motives here from Republicans, conservatives, libertarians or really anybody concerned about the nature of the surveillance state, Rice has certainly earned it. Rice most infamously, following the deadly attack on America's consulate in Benghazi, Libya, took to Sunday morning talk shows to lay the blame on an anti-Muslim YouTube video as an inciting factor to downplay the possibility that the U.S. had been caught unprepared for an attack. Her deliberately misleading comments should be seen as self-serving party hackery. To assume Rice's objectivity here is to ignore the full context of her record.
Let's be clear though: It's entirely likely for Rice's unmasking request to be legal and commonplace and also partly politically motivated. A lot of this battle over intelligence community surveillance revolves around false choices driven before the public by people with agendas. It is possible to believe that it is absolutely legitimate for the intelligence community to be investigating whether there are ties between Trump's team and the Russian government in the breach of private Democratic Party communications last year and yet still be deeply concerned about politically driven leaks intended to influence domestic politics. Likewise it is possible to believe that what Rice did was legal—even commonplace—and question why that is or whether such practices should continue.
If we are concerned at the ability of America's intelligence apparatus being misused for political purposes (and we should, because, you know, history), now is a good time to act. It just so happens that some of the foreign surveillance authorities that may have been misused here are scheduled to sunset this year unless Congress acts. And privacy advocates are hungering for reform to better protect Americans from having their information inappropriately collected and their identities "unmasked" for reasons that have nothing to do with national security or fighting terrorism.
Among those advocates is Sen. Rand Paul (R-Kentucky) who has fought to try to keep the feds from engaging in unwarranted surveillance of Americans. Paul got media attention for golfing with President Trump over the weekend and yesterday had a short press conference to talk mostly about health care reform but also potential surveillance reform in the wake of Lake's news story yesterday.
"It is an enormous deal," Paul said about the prospect of Rice unmasking the names of members of Trump's team. He pointed out that the records of millions of Americans get "incidentally" collected as part of federal surveillance and objected to the idea that this should be considered commonplace.
"They're not so 'incidental' when they're you," he pointed out. Paul wants Rice to testify whether what Lake reported was true and to ask her under oath whether she's at all responsible for any leaks of names to the press (like Michael Flynn, who resigned as national security adviser after his conversations with a Russian diplomat—which he misled Vice President Mike Pence about—were exposed).
Shifting away from this "deep state" fight between the Trump administration and the intelligence community, Paul said he wanted to reform the surveillance authorities themselves, and wants more restrictions on unmasking names and information. He says that if it involves somebody in a political position or a candidate for office, they should have to go to a judge to sign off. He said that he would be as concerned about the possibility of politically motivated surveillance even if the two parties were reversed.
"Do we really want the outgoing administration to be able to eavesdrop on the [incoming] administration?" he asked.
A spokesperson for Paul's office told Reason that Paul is involved in drafting legislation that would reform some of these surveillance authorities and that it would be publicly released in the coming weeks. That Paul has Trump's ear may end up being very important in pushing through any sort of reforms that restrict the federal government's ability to collect and keep Americans' private communications and data. Right before this political surveillance fight broke out big, the Trump administration said they actually don't want any federal surveillance authorities changed. Trump himself campaigned on a pro-surveillance mindset and has historically shown very little interest in citizen privacy.
Trump has been of the attitude that whatever surveillance happened during the transition was "illegal," and that partly explains the whole debate about whether Rice's actions were permitted. But for privacy purposes, we'd all be better off if Paul is able to push Trump toward an understanding that the law itself needs reform. Here's a short piece from the American Civil Liberties Union that explains some of the flaws with these surveillance authorities—despite claims that it's used to fight terrorism and keep tabs on foreign interests, it is able to target perfectly innocent people, and this private data is also used to investigate domestic crimes while bypassing the legal requirement for a warrant.
A representative from the ACLU also participated in a recent Reason-moderated panel on federal surveillance overreach at the South by Southwest conference in Austin, Texas. You can listen to that discussion here.
And an oldie but a goodie: You don't have to be a controversial president with ties to controversial foreign leaders to be worried about federal surveillance. Here are three reasons every American should be concerned about federal surveillance.