By Robert Romano
Bloomberg View columnist Eli Lake’s bombshell revelation on April 3 that “former national security adviser Susan Rice requested the identities of U.S. persons in raw intelligence reports on dozens of occasions that connect to the Donald Trump transition and campaign” has sent a political earthquake through Washington, D.C.
And it raises some key questions, particularly in light of corroborating reports by Fox News’ Adam Housley that the overall surveillance apparently dates back to “up to a year before [Trump] took office,” and Circa.com reporters Sara Carter and John Solomon that “the logs discovered by National Security Council staff suggested Rice’s interest in the NSA materials, some of which included unmasked Americans’ identities, appeared to begin last July around the time Trump secured the GOP nomination.”
According to Lake, Rice made these requests “on dozens of occasions” to get at the information tied to the campaign and transition. But presumably intelligence agencies are intercepting thousands or millions of communications every day.
So, how did Rice know which intercepts to focus on so that it would include Trump campaign contacts and then, after the election, transition officials? Did she have a cheat sheet?
This creates the appearance that Rice, and thus the White House, possibly had access to the raw data or that intelligence officials who had access to the raw data might have tipped off the White House on which intercepts were related to the campaign and transition — a deeply disturbing politicization of the nation’s intelligence agencies.
It is clear Congressional intelligence committees should ask Rice, under oath, what alerted her to these particular intercepts.
Further, with Fox News’ Housley suggesting the surveillance actually went back to Jan. 2016, it raises another important question about how these intercepts were stored.
FBI Director James Comey confirmed in testimony on March 20 to the House Intelligence Committee that the Trump campaign was not under investigation by that agency until July 2016.
Foreign Intelligence Surveillance Act (FISA) Court orders were apparently not sought until June and July of 2016, with both applications being reportedly rejected, and then not approved until Oct. 2016.
So, just how did intelligence agencies know at the beginning of 2016 to begin surveilling the Trump campaign if they lacked authority to look at Trump?
At that time, not a single vote had been cast in either of the major parties’ primaries. There was no way of knowing Trump was going to be the Republican nominee, even if he was the frontrunner in national polls.
And per Circa and Comey and the FISA court requests, the U.S. government did not get involved until June and July 2016.
How was Rice able to get surveillance information dating back to Jan. 2016, then?
This creates the appearance that the intercepts of the Trump campaign in the first half of 2016 were recorded and stored for later use prior to intelligence officials unmasking the U.S. persons.
Of which, there’s a couple of potential explanations, neither really good. Either the intelligence agencies were monitoring all of the presidential campaigns, including Democrats, and record all of their conversations that happened to go overseas.
Or, the intelligence agencies simply record the conversations of all Americans that go overseas or are purely foreign, even if they contain U.S. persons’ identifying information.
A document called USSID 18 includes rules promulgated for collection, retention and then dissemination of foreign intelligence gathered to and from U.S. persons.
To have kept the communications would have required either sign off from the Attorney General if he or she believes that the “contents indicate a threat of death or seriously bodily harm to any person,” under Section 5.4.a. Or the Director of the National Security Agency, under 5.4.d., if he determines the communications contain “significant foreign intelligence” or “evidence of a crime or threat of death or seriously bodily harm to any person.”
For these U.S. persons to have been included in a report for dissemination could have only occurred if, under Section 7.2.c., the “appropriate approval authority” determined “[t]he identity of the U.S. person is necessary to understand foreign intelligence information or assess its importance” or “[t]he information is evidence that the individual may be involved in a crime that has been, is being, or is about to be committed, provided that the dissemination is for law enforcement purposes.”
Those particular unmasking procedures of a U.S. person’s communications intercepted in the collection of foreign intelligence would have required no separate warrant — a constitutionally dubious standard under the Fourth Amendment’s prohibition against unreasonable searches.
As for whether the National Security Agency (NSA) records everything, then-agency head Gen. Keith Alexander in testimony to the Senate Appropriations Committee on June 12, 2013 told lawmakers that “If we didn’t collect that ahead of time, we couldn’t make these connections, so what we create is a set of data and we put it out here and then only under specific times can we query that data.”
Alexander was referring to the periodic collection of phone records by the NSA from Verizon and other phone carriers, enabling the agency to go back and see who called who, at what time, and for what duration. The so-called metadata.
Later in that session, Sen. Dianne Feinstein (D-Calif.) asked Alexander, “It’s my understanding you have the metadata, you have the records of what appears on a phone bill, and if you want to go to the content, then you have to get a court order.”
Alexander responded, “It’s correct,” adding later, “Sen. Feinstein, if you want to get the content, you’d have to get a court order.”
This was stunning admission in 2013 that got little attention. Here, Alexander appeared to confirm that it is possible with a court order to go back and retrieve the content of a phone call that had appeared in the metadata.
But how could the agency access the content of a phone call, even with a court order, from past metadata if it was not already recorded?
Based on Alexander’s testimony, then, and the public reports now available on the nature of the surveillance of the Trump campaign, particularly the timing of the investigation by the FBI in July and Housley’s report that the surveillance began in Jan. 2016, it appears this is precisely what happened to the Trump team.
They were surveilled, and the information recorded, before anyone in the government had even decided to investigate the campaign — and unbelievable abuse of power by the Obama administration. How is that possible unless everything is being recorded and stored?
At least one instance of the surveillance was leaked to the media, the outing of surveillance of the identity then-incoming National Security Advisor Michael Flynn Jan. 12 in the Washington Post. This was a felony that clearly violated 18 U.S.C. Section 798, which prohibits “knowingly and willfully communicat[ing] … or otherwise mak[ing] available to an unauthorized person, or publish[ing] … any classified information … obtained by the processes of communication intelligence from the communications of any foreign government…”
In a statement, Americans for Limited Government President Rick Manning suggested that Rice be put under oath, and urged Attorney General Jeff Sessions to “immediately launch an investigation into U.S. intelligence agencies and former White House officials, and freeze any and all potential deletion of intelligence files, including those related to the unconstitutional, inappropriate surveillance of the Trump campaign and transition.”
Manning concluded, “The actions outlined are a direct threat to the Constitution and the basic liberties of the American people, threatening the essence of our nation, and undermining the consent of the governed.”
Indeed, with the incumbent party, in this case the Obama administration, surveilling and investigating the opposition party, at the time the Trump campaign, and then even after the election, used that surveillance politically against Flynn and Trump himself to cripple the incoming administration as they were preparing to take power.
In the process, Obama absolutely sabotaged the peaceful transfer of power and even threatened national security — and it must never be allowed to happen again.
Robert Romano is the senior editor of Americans for Limited Government.