By Andrew C. McCarthy
Wednesday, April 05, 2017
On Tuesday, in a National
Review Online column, I contended that the reported involvement of former
national-security adviser Susan Rice in the unmasking of Trump officials
appears to be a major scandal — it suggests that the Obama White House, of
which she was a high-ranking staffer, abused the power to collect intelligence
on foreign targets, by using it to spy on the opposition party and its
presidential candidate.
It should come as no surprise that the defense Ms. Rice
and Obama apologists are mounting is heavily reliant on a fact that is not in
dispute: viz., that the intelligence collection at issue was legal.
I anticipated that line of argument a week ago. The issue
is not technical legality, it is monumental abuse of power.
To analogize, if a judge imposed a 20-year jail term on a
man for passing a marijuana cigarette to a second man, the sentence would be perfectly
legal — a distribution of a Schedule I narcotic drug controlled substance calls
for a sentence of up to 20 years’ imprisonment, see 21 U.S.C. §841(b)(1)(C).
Nevertheless, the sentence would also be an outrageous abuse of judicial power.
A judge who did such a thing would be unfit — worthy of condemnation, if not
impeachment.
Abuses of power are offenses against the public trust.
They often overlap with a criminal
offense, but they are not the same thing
as a criminal offense. For example, a politician who accepts money in exchange
for political favors commits both the crime of bribery and an impeachable
offense of corruption. The jurors in the bribery case need not find that the
politician breached his public trust; they need only find an intentional quid
pro quo — payoff in exchange for favor. By contrast, the breach of public trust
is central to the impeachment case: To remove the pol from office, there would
be no need to prove the legal elements of a criminal bribery charge beyond a
reasonable doubt, but it would have to be demonstrated that the politician is
unfit for office. If it is a petty bribe, a prosecutor might ignore it, but the
public should want to throw the bum out.
This is why a “high crime and misdemeanor” — the
constitutional standard for impeachment — need not be an indictable criminal
offense. It may be a chargeable
crime, but it need not be one.
A famous example (though one not much remarked on during
the last several years) is the second article of impeachment against President
Richard M. Nixon. It alleged (my italics):
Using the powers of the office of
President of the United States, Richard M. Nixon, in violation of his
constitutional oath faithfully to execute the office of President of the United
States and, to the best of his ability, preserve, protect, and defend the
Constitution of the United States, and in disregard of his constitutional duty
to take care that the laws be faithfully executed, has repeatedly engaged in conduct violating the
constitutional rights of citizens, impairing the due and proper administration
of justice and the conduct of lawful inquiries, or contravening the laws
governing agencies of the executive branch and the purpose[s] of these agencies.
The impeachment allegation went on to describe how Nixon
had, among other things, directed the FBI, CIA, and IRS to investigate innocent
Americans for reasons unrelated to national security or law enforcement. For
the most part, these directives were not violations of penal statutes. But they
were, individually and collectively, heinous abuses of presidential power
warranting impeachment.
If the new reporting is to be believed, Rice orchestrated
the unmasking of communications involving the Democrats’ political rivals — the
Trump campaign. Her current stress on the lawfulness of the intelligence
collection is a straw man. No credible commentator is claiming (based on what
we currently know) that the intelligence-collection activities of the FBI, CIA,
and NSA were illegal. As I explained yesterday in my aforementioned column, the
surveillance and collection operations were undertaken pursuant to statute (the
Foreign Intelligence Surveillance Act) as well as to the president’s
constitutional authority to collect foreign intelligence (the exercise of which
authority is laid out in a longstanding executive order, EO 12,333).
The allegation against Rice and the Obama administration
is that the unmasking of Trump-campaign and transition officials appears —
cumulatively, and probably in many specific instances of it — to have run afoul
of minimization instructions. These instructions are proposed by the Justice
Department and ordered by the FISA court.
To discuss non-compliance with minimization instructions
in the context of crime is a fool’s errand. Violating minimization instructions
applicable to electronic surveillance is not a crime. Nothing unusual about
that. Not every offense against laws, court orders, regulations, guidelines,
etc., is a crime. Most law violations, in fact, are not crimes.
Moreover, the standard articulated in the minimization
instructions is too vague to predicate criminal liability. It requires the
masking (or concealment) of the identity of any American incidentally
intercepted unless the intelligence value of an intercepted communication
cannot be understood without knowing the American’s identity. Within reasonable
parameters, that is a subjective judgment call. The criminal law is not for
judgment calls. Its provisions must be precise, putting people on clear notice
of exactly what is proscribed. Reasonable minds can differ on how much
identifying information about an incidentally intercepted American is necessary
before the intelligence value of a lawfully intercepted communication can be
fully understood. That’s not the stuff of crime.
But the technical legality of any particular instance of
unmasking is beside the point. The question is abuse of power.
Here, it is critical to bear in mind something that can
easily be forgotten. The sole purpose of foreign intelligence collection is to
understand the actions and intentions of foreign
powers and their operatives. If the government’s purpose is to understand
the actions and intentions of American
citizens, there are two proper ways to go about that: (a) conduct a
criminal investigation in which the American citizens can be targeted for
court-authorized surveillance based on probable cause of a crime, or (b)
conduct a FISA investigation in which the American citizens can be targeted for
court-authorized surveillance based on probable cause that they are acting as
agents of a foreign power.
If neither of those two alternatives is chosen, then the American citizens are not supposed to be
the subject of the intelligence collection effort — they are supposed to be
protected. The snooping to which they are subjected is an incidental byproduct
(i.e., an unintentional albeit inevitable consequence) of snooping on foreign
powers. The incidental snooping deprives them of privacy protections rooted in
law — the requirement that the government obtain a judicial warrant before
seizing and eavesdropping on their communications. The law allows this to
happen, but only if post hoc safeguards are applied.
That is why, as Director James Comey testified before
Congress, the FBI is “obsessive” about concealing the identities of Americans.
That is why unmasking is a big deal.
When an American is intercepted, the collecting agencies
(FBI, CIA, and NSA) don’t shrug their shoulders and say, “Well, we could
provide a marginally better understanding of the meaning of this communication
if we revealed the name of the American.” Their practice is more along the
lines of: “We don’t reveal the names unless it is absolutely necessary to
understanding the communication, and even then, we prefer to use some
substitute (e.g. ‘American Diplomat No. 1’) rather than the actual name.” The
agencies take this position not because they are good, honorable people (though
most of them are). They take it because it is in the interest of successfully
carrying out their national-security mission. They know that if they fail to
protect the identities and privacy of Americans, and the inevitable scandal
arises, an irate public will demand that Congress curtail their spying powers.
On the other hand, anyone can make a mistake. A failure
to unmask an American’s identity when knowing it would be essential to an
understanding of some crucial bit of foreign intelligence could have disastrous
consequences. That is why consumers of intelligence sometimes – very rarely,
but sometimes — ask the collectors to unmask. Even though the collecting
officials know more about their investigations than do consumers (e.g., White
House staffers on the National Security Council) of their intelligence reports,
it is always possible that the consumers could notice something the collectors
missed. Or they could think of an intelligence angle that didn’t occur to the
collectors.
So with all this gray area, how do we know whether
unmasking is a massive abuse of power or a perfectly appropriate exercise of
discretion? We apply common sense.
Was the questionable unmasking a single, isolated
instance, or was it part of a pattern?
Did the communications in question have real foreign
intelligence value, or were they just blather in which Americans participated
or were mentioned — such that it might appear that unmasking the Americans was the objective of the collection effort,
not something that was “incidental”?
Was there a series of unmaskings of a particular American
or group of Americans? After all, it would not seem very “incidental” to
collect and unmask the very same people again and again — that would look more
like targeting.
Were standards applied consistently: Was the same
unmasking protocol applied to all Americans with equal rigor, or does it appear
that some Americans — like maybe . . . Americans connected to Trump — were
given less protection than others?
While the unmasking was going on, was an unprecedented
presidential decision made to disseminate intelligence information very widely
across the “community” of 17 intelligence agencies, including to officials with
no obvious need to know?
And while that
was going on, were administration officials (including some former ones, like
Evelyn Farkas, who left the administration to join the Clinton campaign),
pressuring Congress to seek as much disclosure from intelligence community as
possible regarding Trump?
Whether we are dealing with a major abuse-of-power
scandal or not depends on the answers to those questions. Contrary to Susan
Rice’s latest version of events, it has little or nothing to do with whether
laws were broken.
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