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Sen. Rand Paul Wants to Use Fight over Trump Snooping to Pass Surveillance Reforms

If Susan Rice’s request to unmask Americans’ names was legal, should the rules be changed?

Rand PaulJeff Malet Photography/NewscomWouldn'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.

Photo Credit: Jeff Malet Photography/Newscom

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  • ThomasD||

    "...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)...

    You can always tell who is in the wrong when a Reason author goes full pox-on-both-houses.

  • Jerryskids||

    You can always tell a faux-libertarian when they start defending the Stupid Party over the Evil Party, too. "A pox on both their houses" is both the unofficial motto of the LP and the whole reason the LP exists.

  • WakaWaka||

    I'm pretty sure that was the motto of the Reform Party.

  • chemjeff||

    "You can always tell a faux-libertarian when they start defending the Stupid Party over the Evil Party, too."

    AMEN. I have never understood why certain libertarians - people who have deliberately eschewed membership in either tribe - nevertheless feel compelled to carry water for one tribe or another.

  • freedomlover||

    Politics is like that. Strange bedfellows and all.

  • Fatty Bolger||

    Sure, when it's appropriate. Is it appropriate in this case? Who spied on who, exactly?

  • croaker||

    So...which is the Stupid Party and which is the Evil Party? So hard to tell these days...

  • ThomasD||

    You can always tell a faux-libertarian when they respond to painful truth with name calling.

    That it was an obvious leftitarian like you?

    Icing.

  • ||

    To be fair, Scott effectively played the "What difference, at this point, does it make?" card without actually playing it.

  • WakaWaka||

    The good thing about Trump is that the reaction to him has really exposed the hypocrites

  • ||

    The $64K question is "if there's an investigation into potential criminal behavior by the foreign targets of surveillance, what was the criminal behavior that compelled Rice to request their names be unmasked?"

    And if the answer is "there was NOT any criminal behavior by the foreign targets of surveillance, nor were any of the US citizens involved in potential criminal behavior" then we need to know what legal reason does Rice have to unmask their names?

    It's illegal to unmask the names for purposes other than what has been stated. If these purposes did not exist than people should be investigated for violating federal law.

  • BYODB||

    This. Exactly this. While those on the left are crying about some kind of collusion between the Trump campaign and Russia, thus far there is exactly zero evidence of that and it's an incredibly important point here because if there was no collusion or crime than there is no justification for the unmasking.


    I have a feeling that they were hoping to justify their actions after finding something in the intel, but since they found nothing they're left with covering up what they did.


    This isn't a defense of Trump by the way, but if it happened to a candidate for President of the United States is there any doubt it's happening to all of us daily? And also, wasn't Nixon going to be impeached for more or less this very thing? I guess he should have just created a FISA court to legitimized his actions. (And no, I don't blame Obama for FISA directly but he sure didn't get rid of it either, now did he?)

  • ThomasD||

    Trump commits an act within the scope of Federal law and Federal judges, based solely upon his assumed mala fides, block the executive order.

    A high Obama administration official does something that, absent good cause, is a crime and gets every benefit of the doubt.

  • ThomasD||

    A suggestion to Reason editorial staff on a better angle for covering this story.

    If nobody in the Obama administration gets punished for these acts what is to prevent Trump from doing the same to anyone who stands in his way?

  • WakaWaka||

    Or, just imagine that this was Dick Cheney unmasking names from the incoming Obama administration.

  • WakaWaka||

    Come to think of it, didn't Cheney unmask someone with a shot gun during the Bush administration? Where's Representative Nunes on that, huh?

  • Fist of Etiquette||

    I like Rice. As apparent political hacks go, she seems especially clumsy.

  • Jerryskids||

    Loretta Lynch, Susan Rice, Lois Lerner. Which one did it best?

  • ||

    She does have an impressive resume of incompetence.

    She said this in 1994 after the Rwandan Genocide took place during the Clinton administration, upon which she served on the National Security Team-

    "I swore to myself that if I ever faced such a crisis again, I would come down on the side of dramatic action, going down in flames if that was required."[17]

    She has promptly avoided dramatic action of any kind in various positions of authority over National Security ever since. As 27th United States Ambassador to the United Nations she watched Libya depose Gaddafi and then a civil war which culminated in the Benghazi disaster. She was a proponent of the "red-line" Obama imposed on Syria that was promptly removed once Assad strode across it. And then she helped Obama negotiate the Iran Nuclear deal/ransom as National Security advisor.

    Her entire tenure in government is a history of lies and incompetence.

    So yeah, we should totally trust her that all of the unmasking was legit.

  • WakaWaka||

    That's Susan Powers you're citing. She's just a warmonger

  • ||

    Nope, that's Rice- took the quote from her Wiki page.

    https://en.wikipedia.org/wiki/Susan_Rice

  • WakaWaka||

    I'll be damned.

  • juris imprudent||

    Samantha Powers - she is almost interchangeable with Susan Rice.

  • WakaWaka||

    Two articles in one!

    "it's tough to interpret even basic facts here"

    "Let's be clear though: It's entirely likely for Rice's unmasking request to be legal and commonplace"

  • SamHell||

    Rush Limbaugh just told me that intelligence agencies like the FBI do the investigating, not the white house. If that's true is the National Security Advisor just supposed to be a go between? Unmasking political enemies during an election sure sounds like a conflict of interest on the part of the white house.

  • Tom Dial||

    I'm no fan of Rush Limbaugh; indeed, I don't recall ever listening to his radio show. I believe that in this case, though, he is correct. The statement agrees with my reading of the relevant parts of the statute: that under the law the most an executive branch official outside the collecting agency can do is refer minimized raw intelligence take to the appropriate counterintelligence agency and Department of Justice to evaluate and determine whether it warrants asking the collecting agency to unmask the references to US persons. My recollection is that the collecting agency, presumably the NSA in the case at hand, can refer cases to DoJ and the FBI on its own initiative where the information indicates criminal activity. If this is not now the case, it should be, and it would not be unreasonable to require a fourth amendment warrant, justified by the minimized information, before it can be legally unmasked, with significant criminal penalties for leaking.

    The goal of preventing political mischief requires the White House staff generally to be restricted from gaining direct access to umasked US person data, particularly where, as in the present case, it involves political campaigns.

  • Aloysious||

    My wish: pass surveillance reforms, and shrink their budget.

  • chemjeff||

    Oh good. Now we have two tribal steaming piles of shit for each one to latch on to, facts be damned, in order to gin up outrage and donations.

    Team Blue: RUSSIA HACKED THE ELECTION!!
    Team Red: OBAMA SPIED ON TRUMP!!

    Maybe if there was an adult in the room who could slap down these two imbecilic moronic claims with some degree of authority, based on discussion of, you know, actual facts and evidence...

  • Fatty Bolger||

    I'd claim "false equivalence", but no doubt you are right. Rice has already admitted to unmasking the names, but her motives were as pure as the driven snow. She didn't ask for the reports, they just landed on her desk, somehow. And to understand the report she didn't ask for, well, naturally she had to find out who they were about. It all makes perfect sense, see?

    "I receive those reports, as did each of those other officials, and there were occasions when I would receive a report when a U.S. person was referred to. Name not provided, just U.S. person," Rice said. "And sometimes in that context, in order to understand the importance of the report and understand its significance, it was necessary to find out who that U.S. person was."

    That certainly clears things up.

  • ThomasD||

    " facts be damned"

    Assumes absence of facts plainly in evidence.

  • chemjeff||

    Uh huh. Whatever bub. You keep shilling for Team Red.

  • ThomasD||

    Yeah, I'm a red shill.

    Keep up with the name calling, you clearly cannot argue against the facts.

  • croaker||

    That faint sound you hear is Richard Millhouse Nixon laughing from his grave.

  • NotAnotherSkippy||

    He was just reincarnated into Barry. It fits his ideological profile better.

  • freedomlover||

    Yes but, Nixon was not a crook. Just ask him.

    While BO freely admitted it. ;-)

  • Bob K||

    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.

    No Paul, No. They are either citizens or not. No special laws for the politicians. They either get it rammed up the ass like the rest of us or they repeal this shit.

  • Tom Dial||

    No, they either are US persons or they are not. The Constitution, as amended, distinguishes in various places between citizens and persons, and the fourth amendment speaks of "people" rather than "citizens." In the present context, the appropriate category is "US persons" as it is in the US Code and NSA minimization procedures.

  • Bruce Majors||

    Breaking: Mark Zuckerberg to hire Susan Rice as Director of Privacy at FaceBook.

  • freedomlover||

    Excellent!

  • freedomlover||

    That Zuck comments reminds me of a tangential path:

    During the Obama admin and, going into the last election, old timers like me watched the SV moguls fall all over themselves fawning and groveling for the leftists in power. The ones who wanted to be as hip as the hipsters in the Valley.

    We of more experience said to ourselves, "Just wait until they come after you and we'll see how much love you have for them then".

    Well, with the growing outrage about the lack of "diversity" in the SV the chickens are finally coming home to roost. And, those SV wonderkids are tripping themselves up right and left in their attempts to respond (they recruit from Howard you know?).

    Throw in the governmental haste to get out in front of the autonomous vehicle development before it gets off the ground with restrictive regulations and it's really one of those sad, ironic moments when you want to say "I told you so". Only you can't. Because you really wish it were not true.

    It is so sad! And the worst is not over. The government will step in with lawsuits and extra regs to, in the words of the immortal Captan, "Get their mind right".

    I'd post links to the latest accusations and responses but, even using tiny urls the Reason length limit would cut me off.

  • Chip Your Pets||

    Oh look, Reason is making excuses for federal govt warrantless surveillance.

    Do they think they've past the point of no return with actual libertarians, and are now pursuing the same fantasy about left-libertarians as Gary Johnson did?

  • Bruce 6225||

    Rand is very special. How many in Washington have put something forward like this, that is positive, that can help our future in the middle of this horrific Obama exposure? If only his party would give him some credit I'd become slightly optimistic about our chances.

  • Ray W||

    Another article showing that Reason isn't really libertarian. Anyone going to such lengths to defend Rice and what was done under Obama is either a leftist or just very sadly uninformed.

  • ThomasD||

    There are many libertarians who lean strongly left. There are also some progs pretending to be libertarians.

    They don't bother me when they are up front about it. When they pretend to be outside ordinary politics looking askance at everyone else is another matter entirely.

  • AD-RtR/OS!||

    YES!
    There needs to be something a bit more substantial than a FISA Court panel to do this (perhaps a standing committee of the major Intell agency chiefs, including the Congressional Big-8), and that an unmasking has to receive the unanimous approval of ALL members of the committee.

  • Tom Dial||

    There is nothing insubstantial about the Foreign intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review. Both are staffed by Article III judges appointed by a president under Article II. Because they deal almost exclusively in classified matters, both courts necessarily do their work in secret, and they have specific oversight duties related to intelligence activities, but otherwise are much the same as other federal courts.

    Putting executive or legislative branch people, or a mixture of the two, in charge of this would be a prescription for mischief. The courts and proper warrants plainly are the proper way to handle it.

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