Whatever happened to the ‘unmaskings’ probe?

Every day brings new stories about Russian interference in the 2016 election, whether Donald Trump played a role, and alleged abuses by our intelligence agencies.

One of the deepest, darkest, most important issues in the whole mess has to do with the massive number of “unmaskings” of U.S. citizens. It potentially opens a can of worms squirmier than many other issues.

To understand, it helps to begin with the aftermath of the 9/11 terrorist attacks, when U.S. intel agencies sought to expand their surveillance authority — for what seemed like all the right reasons. (For context, a week before 9/11, Robert Mueller had become FBI director; a month earlier, James Clapper had been named head of the agency that supplies image intel to the CIA, and John Brennan recently had become CIA deputy executive director.)

Wiretapping foreigners who could be terrorists isn’t as sensitive an issue, since our law doesn’t give them the same protection as U.S. citizens. The problem comes when wiretaps include U.S. citizens in contact with foreign targets. That’s called “incidental” collection.
And it’s not just phone calls. Today’s wiretaps can include everything on the web — emails, bank accounts, photos, messaging, Facebook posts. And “incidental collection” can include anything picked up when a target is watched directly, through a bug, or by secretly activating his computer’s microphone and camera.

U.S. citizens who aren’t accused of crimes are entitled to strong constitutional privacy protections. So, to alleviate worries that citizens’ rights might be violated through “incidental” spying on foreign targets, the intel agencies adopted strict rules. At first, they promised to destroy any “incidental” intelligence they collected. Later, they decided to store it — for a short time — but promised that the names of the U.S. citizens would be “masked,” or hidden, even internally.

Then, they argued that they needed to store the information on U.S. citizens a little longer, and might occasionally need to “unmask” or reveal their names. Still, “unmasking” was supposed to be extraordinarily rare, requiring a high-ranking official’s approval accompanied by a strong legal argument that the citizen’s name is crucial to addressing some national-security threat.

But several years ago, intel insiders tell me, the process was corrupted. Here’s how:

An official who is a bad actor may want to monitor a U.S. citizen — say, a political enemy or a journalist — but knows he could never get wiretap approval from the Foreign Intelligence Surveillance Court (FISC). So he develops a pretext to wiretap a foreigner or a target in contact with that citizen. He then “incidentally” captures the citizen’s information, too. Later, he builds a case for “unmasking” the U.S. citizen’s name, supposedly for national security or other crucial reasons.

Here’s the best part — for the bad actors. The U.S. citizens are usually none the wiser. The surveillance isn’t intended to build a criminal case; it’s to collect dirt or political intel or blackmail material. So the corrupt process is never scrutinized in a U.S. court.

Think of it as reverse engineering of intel.

In 2016, very real questions were raised about whether reverse engineering of intel was widely deployed in an unethical manner. A red flag waved when we got a sense of how many Americans are “incidentally” surveilled — so many, that near-daily unmasking requests were said to be made in 2016 under the name of a single official: United Nations Ambassador Samantha Power.

Read more