With allegations targeting former Obama national security adviser Susan E. Rice, here's what you need to know about "unmasking" U.S. persons. (Jenny Starrs/The Washington Post)

PRESIDENT TRUMP: “I don’t want to comment on anything about — other than to say I think it’s a — I think it’s truly one of the big stories of our time.”
GLENN THRUSH: “Do you think she [Susan Rice] might have committed a crime?”
TRUMP: “Do I think?”
THRUSH: “Yeah.”
TRUMP: “Yes, I think.”
— exchange between Trump and New York Times reporters, April 5, 2017

President Trump granted an interview to the New York Times, offering yet another unverified claim. The White House did little to explain his comments, not responding to a query. Although eventually a partial transcript was released, the New York Times article left the impression that Trump was referring to officials seeking the identities of Trump associates who were swept up in the surveillance of foreign officials by American spy agencies. But the actual conversation is murky, leaving open the possibility that the president thought another crime had been committed, such as leaking classified information.

“It’s such an important story for our country and the world,” Trump claimed. “It is one of the big stories of our time.”

So here’s an attempt to sort through two questions from readers about Susan Rice, who was national security adviser at the end of President Barack Obama’s term. (We previously have examined other questions about alleged surveillance of Trump.)

What kind of crime could Rice have committed?

On the face of it, Trump’s assertion is absurd. Numerous former national security officials told The Fact Checker that Rice, as national security adviser, had every right to request the identities of U.S. citizens who were incidentally recorded or referenced in surveillance conducted by the National Security Agency. Generally, intelligence reports would come to the national security adviser with the names of U.S. citizens redacted, replaced by a phrase such as “U.S. person 1.”

“To be on her desk in the first place, the report must already have intelligence in the first place or NSA would not have published it, especially if it involved any U.S. person information,” said former NSA director Michael V. Hayden. “So the original intelligence value judgment is made by a career intelligence professional at NSA.”

Hayden said that the NSA “is notoriously conservative about including U.S. person information. Once out, it’s out. Better to not include and let people ask.” Then, “when the request to unmask is made, it is adjudicated again at NSA by analysts and lawyers. Sometimes they say yes. Sometimes they say no. The basic question is does this person need this information to understand the intelligence value of this report to do their job?”

So, in theory, if Trump believes Rice committed a crime by requesting this information, he is also suggesting the analysts who approved the requests may have aided and abetted a crime. Hayden said that “is the equivalent of trying to criminalize intelligence judgment.”

Hayden added that, while lawful authority could be abused, the “unmasking story that I have heard to date on its face reflects activity that is lawful, appropriate and routine.” (Lawfare blog has an excellent primer on the process.)

As Hayden referenced, several former NSC officials suggested there could be questions raised about abuse of power. A Bloomberg opinion article said that Rice made “dozens” of requests to learn the names of individuals redacted in intelligence reports. That figure has not been confirmed. Rice, in an interview with MSNBC, simply said “there were occasions” when she requested the name “in order to understand the importance of that report and assess its significance.” She said the Obama administration did not use intelligence for political purposes, but she refused to say whether she requested the names of Trump transition officials.

In 2015, the most recent year data is available, the NSA released 654 U.S. person identities in response to requests.

The Wall Street Journal reported that the names of two U.S. citizens who were part of Trump’s transition team were unmasked in intelligence reports. One person was Michael Flynn, who served briefly as Trump’s national security adviser until he was fired for misleading other administration officials about the nature of conversations with Russian Ambassador Sergey Kislyak. Those conversations were monitored by the NSA, but the WSJ said that Rice did not instigate Flynn’s unmasking. Instead, the paper said Rice requested the unmasking of another (unnamed) transition official who was “part of multiple foreign conversations that weren’t related to Russia.”

Separately, disclosing classified information to news organizations could be criminal. Rice adamantly denied she did that, saying, “I leaked nothing, to nobody, and never have and never would.” But Trump claims to have been concerned about leaks.

Rice could have discussed the information she had learned from the intelligence reports with Obama administration colleagues, who in turn might have discussed it with reporters. But Marcy Wheeler, who writes on intelligence matters, estimates that 15 to 20 people would have access just to raw intercepts, suggesting the circle of people who knew this information could be quite wide even before people in the Obama administration might have gossiped about it.

Did Rice mislead on PBS?

A separate problem for Rice is an answer she gave during a March 22 interview with PBS’s “Newshour,” in which she appeared to deny knowing whether conversations involving Trump transition officials were incidentally collected by the NSA. The program aired without the full question posed by host Judy Woodruff, just Rice’s answer. After controversy arose, PBS posted the complete back-and-forth.

Readers can judge for themselves, but Rice tends to stick to her talking points. This is what got her in trouble — and earned her Pinocchios — when she famously insisted in 2012 that the Benghazi attacks were not planned in advance, even as the Libyan president appeared on the same Sunday programs to say, “This was preplanned, predetermined.”

Rice was invited on the PBS program to discuss Trump’s unproven claim that Obama had tapped his phones at Trump Tower. But just before the show aired, House Intelligence Committee Chairman Devin Nunes (R-Calif.) alleged that he had seen White House documents indicating the Obama administration intercepted Trump’s campaign communications while monitoring foreign officials.

Woodruff started the interview by raising Nunes’s unexpected disclosure that Trump “and the people around him may have been caught up in surveillance of foreign individuals and that their identities may have been disclosed.” Woodruff asked: “Do you know anything about this?”

“I know nothing about this. I was surprised to see reports from Chairman Nunes on that count today,” Rice answered. She then went on with her prepared remarks: “Let’s back up and recall where we have been,” she said, beginning a spiel about alleged wiretapping of Trump Tower.

After the transcript was released, Rice tweeted that she still does not know what reports Nunes was referring to.

The truthfulness of the answer is hard to gauge. If she was just deflecting a question because she didn’t know enough about Nunes’s claims, she did it in an awkward manner. Rice’s quick dismissal raised suspicions because she appeared to say she knew nothing about a practice that we now know she actively used.

 

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Not the whole story
“Yes, I think" Susan Rice may have committed a crime
in an interview with The New York Times
Saturday, April 5, 2014