A hole in the Con­sti­tu­tion

Su­san Rice’s ac­tions have the look of spy­ing for po­lit­i­cal pur­poses

The Washington Times Daily - - OPINION - By Andrew P. Napoli­tano Andrew P. Napoli­tano, a former judge of the Su­pe­rior Court of New Jersey, is a con­trib­u­tor to The Washington Times. He is the au­thor of seven books on the U.S. Con­sti­tu­tion.

The is­sue of fed­eral gov­ern­ment sur­veil­lance of Amer­i­cans has largely oc­cu­pied Washington politi­cians and the me­dia since Pres­i­dent Trump first ac­cused his pre­de­ces­sor’s ad­min­is­tra­tion of spy­ing on him while he and his col­leagues worked at Trump Tower in New York City dur­ing the pres­i­den­tial elec­tion cam­paign and dur­ing the pres­i­den­tial tran­si­tion. Mr. Trump’s al­le­ga­tions were ini­tially dis­missed as a di­ver­sion­ary tac­tic to get the at­ten­tion of the me­dia and the in­ter­est of the pub­lic off al­le­ga­tions made against the Trump cam­paign that it con­spired with agents of Rus­sian in­tel­li­gence to fa­cil­i­tate Rus­sian in­ter­fer­ence with the pres­i­den­tial elec­tion. Even some very smart col­leagues of mine dis­missed Mr. Trump’s al­le­ga­tions, ar­gu­ing that no one in Washington found them be­liev­able.

Then FBI Di­rec­tor James Comey, and Adm. Mike Rogers, di­rec­tor of the Na­tional Se­cu­rity Agency (NSA), Amer­ica’s 60,000-per­son do­mes­tic spy­ing ap­pa­ra­tus, tes­ti­fied un­der oath that they knew of no sur­veil­lance of can­di­date or Pres­i­den­t­elect Trump at Trump Tower. When I heard th­ese de­nials, I thought them to be odd at best and er­ro­neous at worst. I was privy to cred­i­ble chat­ter in the in­tel­li­gence com­mu­nity that Mr. Trump’s al­le­ga­tions were cor­rect, and I knew that the FBI had re­vealed it was ex­am­in­ing the ac­tiv­i­ties of the Trump cam­paign to look for Rus­sian in­volve­ment and that such an ex­am­i­na­tion would surely find the sur­veil­lance of Mr. Trump that the in­tel­li­gence com­mu­nity was chat­ting about.

Then the chair­man of the House In­tel­li­gence Com­mit­tee, Rep. Devin Nunes, re­vealed that whistle­blow­ers from the in­tel­li­gence com­mu­nity had ap­proached him with ev­i­dence sup­port­ive of Mr. Trump’s claims. He viewed this ev­i­dence and re­vealed that it showed sur­veil­lance of can­di­date and Pres­i­dent-elect Trump, but it had noth­ing to do with Rus­sia. Then Mr. Nunes’ Demo­cratic coun­ter­part on the same com­mit­tee, Rep. Adam Schiff, who had com­plained loud and long that he had not seen the doc­u­ments, viewed the same doc­u­ments and af­ter­ward re­mained es­sen­tially mute.

Be­fore all this hap­pened, un­named sources re­leased a por­tion of tran­scripts of tele­phone con­ver­sa­tions be­tween the Rus­sian am­bas­sador to the United States and re­tired Lt. Gen. Mike Flynn, then Mr. Trump’s na­tional se­cu­rity ad­viser in the White House. The con­ver­sa­tions had taken place be­fore Mr. Trump was in­au­gu­rated. Though only ex­cerpts were re­vealed — ex­cerpts in­tended to em­bar­rass Mr. Flynn and taunt Mr. Trump — they ar­guably showed Mr. Flynn coun­sel­ing the am­bas­sador to ex­pect dif­fer­ent treat­ment of Amer­i­can sanc­tions on Rus­sia from the Trump ad­min­is­tra­tion than they had re­ceived from the Obama ad­min­is­tra­tion. How­ever, that was an ex­pec­ta­tion that any ra­tio­nal per­son would al­ready have had. This rev­e­la­tion and its af­ter­math did prove em­bar­rass­ing to Mr. Flynn and Mr. Trump, and Mr. Flynn re­signed.

How did any­one ob­tain tran­scripts of con­ver­sa­tions in­volv­ing Trump cam­paign or tran­si­tion of­fi­cials? Here is the back story.

The Amer­i­can pub­lic has per­mit­ted the most mas­sive and thor­ough do­mes­tic sur­veil­lance ap­pa­ra­tus in his­tory to come about right un­der our col­lec­tive and for­merly free­dom-lov­ing nose. Be­gin­ning in 1978 and con­tin­u­ing up to the present, Congress has passed statutes that pur­port to con­fine do­mes­tic spy­ing to for­eign peo­ple com­mu­ni­cat­ing with any­one in Amer­ica. Yet that con­fine­ment is a myth — a myth ac­cepted even by the Con­gresses that have au­tho­rized and reau­tho­rized it.

In the­ory, spy­ing in Amer­ica is done pur­suant to the For­eign In­tel­li­gence Sur­veil­lance Act and sub­se­quent statutes that pro­vide for the in­ter­ven­tion of judges who is­sue war­rants. In prac­tice, the war­rants are gen­eral war­rants. They are not based on sus­pi­cion. They do not iden­tify the per­son whose com­mu­ni­ca­tions are to be in­ter­cepted. They per­mit the NSA to search where it wishes — for ex­am­ple, in cer­tain ZIP codes, area codes and ser­vice provider cus­tomer lists — and re­tain what­ever it finds.

On top of this sub­terfuge is the be­low-ther­adar-screen be­hav­ior of the NSA, which looks to a Rea­gan-era ex­ec­u­tive or­der to jus­tify its cap­ture in real time of ev­ery tele­phone con­ver­sa­tion and ev­ery com­puter key­stroke of ev­ery­one in the U.S. since 2005.

That mas­sive amount of raw data is stored dig­i­tally in NSA fa­cil­i­ties in Mary­land and in Utah, and it is avail­able for ex­am­i­na­tion by select peo­ple. One of the peo­ple who have ac­cess to it is the pres­i­dent’s na­tional se­cu­rity ad­viser. My col­leagues at Fox News and at other me­dia out­lets have re­ported that Su­san Rice, Pres­i­dent Obama’s fi­nal na­tional se­cu­rity ad­viser, sought and ob­tained tran­scripts of con­ver­sa­tions of peo­ple at Trump Tower, os­ten­si­bly look­ing for a con­nec­tion to Rus­sia. Ms. Rice has ad­mit­ted this.

Yet in that process, some­one re­vealed the name of an Amer­i­can whose com­mu­ni­ca­tions had been ex­am­ined — known as un­mask­ing. Un­mask­ing is law­ful in pri­vate only if nec­es­sary to com­pre­hend a na­tional se­cu­rity-re­lated and law­fully in­ter­cepted com­mu­ni­ca­tion. It is never law­ful to leak pub­licly.

If un­mask­ing is done for any non-na­tional se­cu­rity pur­pose — such as pol­i­tics, cu­rios­ity, em­bar­rass­ment or re­venge — or if it is from a surveilled con­ver­sa­tion that was not na­tional se­cu­rity-re­lated, the un­mask­ing is crim­i­nal. The use of in­tel­li­gence data for po­lit­i­cal pur­poses is a felony. Its un­law­ful use is es­pi­onage be­cause the iden­tity of Amer­i­cans surveilled is top-se­cret — the high­est level of clas­si­fi­ca­tion. Some­one un­masked Mr. Flynn and most likely Mr. Trump.

The wrong­ful ex­po­sure of top-se­cret ma­te­rial is the same crime com­mit­ted by Hil­lary Clin­ton when she placed top-se­cret emails in non-se­cure venues. Yet if the al­le­ga­tions against Ms. Rice are true, her be­hav­ior was ar­guably worse. Mrs. Clin­ton acted with gross neg­li­gence. Ms. Rice’s al­leged be­hav­ior may have been in­ten­tional.

Michael Do­ran, who worked in na­tional se­cu­rity in the Ge­orge W. Bush White House, has ar­gued that “some­body blew a hole in the wall be­tween na­tional se­cu­rity se­crets and par­ti­san pol­i­tics.” Yet this is far worse than a hole in the wall; it is a hole in the Con­sti­tu­tion. Mass spy­ing with­out sus­pi­cion and the select rev­e­la­tion of its fruits for po­lit­i­cal pur­poses is far worse than any­thing the gov­ern­ment of King Ge­orge III did to the Colonists, and they fought a war to se­cede from his coun­try.

How much longer will Amer­i­cans per­mit the gov­ern­ment to pull the wool over our eyes? What­ever hap­pened to the con­sti­tu­tional right to pri­vacy? Does the Con­sti­tu­tion — which re­quires a show­ing of some ev­i­dence of wrong­do­ing to a judge be­fore the gov­ern­ment may in­ter­cept any com­mu­ni­ca­tions — still mean what it says?

ILLUSTRATION BY GREG GROESCH

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