Nearly a Decade Later, the Unmasking Scandal Comes Full Circle

Devin Nunes was put under investigation in 2017 for looking into abuse of foreign intelligence surveillance programs, including by Barack Obama's White House. New documents appear to vindicate him

VINDICATION? Above, former Obama national security adviser Susan Rice. Below, President’s Intelligence Advisory Board chief Devin Nunes

Last week, when Donald Trump’s Justice Department released notes of an FBI interview with a “whistleblower” from the Democratic staff of the House Intelligence Committee, the few media outlets to seriously cover the story focused on a grave accusation: then-Congressman Adam Schiff approved leaks of classified information in 2017 as a way “topple” the Trump administration. The document, which seemed to confirm mention of a “Committee Witness” in an Inspector General’s report last year, triggered heated denials from Schiff and fellow Democrat Eric Swalwell, who seethed that the only “real criminals” in Washington were in the White House.

Few noticed another passage deep in the report, in which the Democratic staffer described efforts to “unmask” identities of figures in Trump’s orbit. Typically, the names of Americans swept up in monitoring of suspected foreign terrorists or criminals are anonymized, and transcripts of their conversations are only available to non-intelligence personnel upon request from high-level officials. The whistleblower suggested these “unmasking” techniques had been abused by members of the House Permanent Select Committee on Intelligence, or HPSCI:

HPSCI personnel contacted [redacted] and [redacted] and requested the number of documents the agencies had related to President Trump. The staff wanted to know how many of these documents were masked. They planned to request the unmasking of the individuals and then deal with them.

The report contains other mentions of efforts by “HPSCI attorneys” to unmask the identities of unnamed figures. It’s theoretically possible that the staffer was referring in certain places to actions by Republican HPSCI staffers, but it’s unlikely that’s the case throughout, especially in the above passage. Either way, there’s reason some of the Republicans who originally looked at this issue saw in that release a piece of overdue vindication, after being denounced for investigating these very practices nearly a decade ago.

Former House Intelligence Chairman Devin Nunes in 2017 was forced to recuse himself from the Russia investigation when Democrats launched a House Ethics Committee probe in response to his unmasking claims. Nunes was cleared later, but damage was done: investigation into Obama-era abuses of foreign surveillance programs ground to a near-halt, as everyone from the Washington Post to Talking Points Memo lambasted the “completely fake and stupid unmasking conspiracy theory.”

Over the years, however, evidence surfaced suggesting abuse claims were anything but conspiracy theory, and that Nunes was correct to raise an alarm about misuse of the Foreign Intelligence Surveillance Act (FISA) program. Although a Trump-appointed Special Counsel, John Bash, issued a report finding no evidence of misuse of unmasking procedures for political purposes, Trump-Russia investigators in both the Senate and the House have long believed there was more to the story, and that Bash’s report ignored significant evidence of corruption. “Not gonna lie. The Bash thing was a gut punch for us,” is how one former Republican Senate aide put it. “It sucked.”

Now the unmasking story is back in the investigative picture. According to a Justice Department spokesperson, the FISA court in June unsealed more Carter Page materials for oversight purposes, giving Russiagate investigators new documents to examine. Along with last week’s FBI whistleblower release, hopes have been reignited that the issue of using FISA to spy on Americans for political reasons will finally be re-examined, after a nearly decade-long delay.

“We pushed for years for transparency and accountability for the Russia hoax and were continually disappointed,” a Nunes-era HPSCI staffer told Racket. “But right now, some of us are feeling a strange sense of optimism that we’re not used to.”

After a post-Congressional sojourn as the CEO of Truth Social, Nunes is back in government, heading Trump’s Intelligence Advisory Board. If he’s vindicated on unmasking, it wouldn’t be his first belated victory. In February 2018, after release of the so-called “Nunes memo” put together by then-investigator Kash Patel accusing the FBI of lying to the FISA court, Patel and especially Nunes were denounced as conspiracist rogues in the most abject terms. Nancy Pelosi claimed his “dishonest” actions and “bogus memo” so “disgraced” the House that he needed to step down. The Washington Post agreed, calling the memo’s release “Trump’s most unethical act.” Former CIA chief John Brennan, who set historic standards for cherry-picking in his construction of the 2017 Intelligence Assessment on Russian meddling, railed against the “cherry-picked” document, saying the “appalling” Nunes “abused the office of the Chairman”:

A little over a year later, though, the Barack Obama-appointed Inspector General of the Justice Department, Michael Horowitz, published a 400-page report supporting all of Nunes’ major claims, forcing even the Washington Post to admit there was “vindication.” Will a similar adjustment to conventional wisdom now take place with regard to the requests by Obama White House officials like former National Security Adviser Susan Rice to unmask the identities of Trump figures for dubious reasons? There are new reasons to believe that’s the case.

The “unmasking” controversy far predates Donald Trump and Russiagate. Official attempts to “unmask” identities of politicians captured in foreign intelligence monitoring had once been a bright red line for American liberalism. When John Bolton was nominated by Bush to serve as Ambassador to the United Nations, Democrats balked. As Undersecretary of State for Arms Control and International Security in Bush’s first term, Bolton asked to unmask the names of Americans swept up in FISA intercepts 10 times in four years. Connecticut’s Chris Dodd said unmasking should be “rarely requested,” and “infrequently… [by] non-career political appointees such as Mr. Bolton.”

“Bolton Should Step Aside,” yelped the Los Angeles Times, while the New York Times denounced the “incorrigibly secretive” Bush administration. Here’s none other than future President Joe Biden, then a Senator from Delaware, denouncing “the nerve” of the Bush administration to deny leaders of the Senate information given not just to Bolton, but to Bolton’s staff. “This is just strong-arm, man,” Biden snapped:

In the Obama years there were more questions about improper use of surveillance tools. The noisiest involved reports of the White House listening to French and German leaders, but there were domestic cases, too. A December 29, 2015, article by Adam Entous and Danny Yadron in the Wall Street Journal titled, “U.S. Spy Net on Israel Snares Congress” described how the Obama White House read the results of “incidental” collection of conversations between Israelis and members of Congress opposed to Obama’s Iran deal. Administration sources told Entous, Yadron, and the Journal that the intercepts “reaffirmed” what they’d guessed at, namely that Israeli Prime Minister Benjamin Netanyahu was “focused on building opposition among Democratic lawmakers.” This bizarre admission of using FISA to glean intelligence about a hotly contested legislative vote passed almost without comment.

In 2016, before Trump or Hillary Clinton sewed up their respective party nominations, a bitter clash between intelligence agencies came to a head. An NSA compliance officer in early 2016 sent up an alert about an excess number of certain kinds of searches, including “To and From” queries (in which a user can enter, say, a phone number and receive results going to and from that number) and “About” searches (same, but the search will pull all results that involve a name, number, address, etc). The alert reached then-NSA chief Admiral Michael Rogers, who ordered an internal audit. The NSA in the summer of 2016 found a whopping 85% of all searches of this type were “non-compliant.” From a later FISA court report:

Rogers took the unusual step of cutting off FISA access to FBI private contractors, then went to the FISA court in September of 2016 to make an ex-parte communication to a judge, warning of possible abuses. In October, just before the Trump-Clinton election, the government “orally apprised the Court of significant noncompliance with the NSA’s minimization procedures involving queries of data acquired under Section 702 using U.S. person identifiers.” A month later, on November 17th, 2016, Rogers met with now President-elect Trump at the Trump Tower, reportedly to discuss the Director of National Intelligence job. A Washington Post story quickly appeared claiming “intelligence chiefs” recommended the previous month that Rogers be sacked, naming Defense Secretary Ashton Carter and “Director of National Intelligence James R. Clapper” as authors of the recommendation. This story was followed by a similar New York Times piece. One of the few public figures who defended Rogers was Nunes. “It’s not by accident that Admiral Rogers meets with the president-elect and two days later this story… appears,” he told the Times.

All of this is important background for recent Russiagate revelations, including most notably last week’s release by Tulsi Gabbard’s office of an email exchange in which Clapper responded to complaints from Rogers about his NSA being denied access to Russia intelligence. Clapper gave Rogers a frosty reply, not only telling him that the plan was “that’s OUR STORY and we’re stickin’ to it,” but that he may not get the access he wanted, because “we may have to compromise on our ‘normal’ modalities” and “this is a team sport.” It’s impossible to think efforts by Rogers to surface abuses of FISA, and Clapper’s public recommendation that Rogers be fired, didn’t play roles in this moment.

As late as the beginning of March 2017, House Democrats like John Conyers of Michigan and Ted Lieu of California were expressing skepticism and demanding answers about Section 702 of the FISA program, which was about to sunset absent Congressional re-authorization. “The manner in which one collects, maintains and disseminates this information,” said Conyers, “is only lawful if Congress says it is.”

Then a series of episodes hit the news that both transformed the Trump-Russia scandal into an international sensation, and changed the public’s view of intelligence services in general and FISA specifically. The cascade started on March 20, 2017, when FBI Director James Comey sat before a microphone in Congress and told the world his agency was investigating “links” between Trump and Russia:

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election, and that includes… any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts…

News that an FBI Director was investigating his boss sent an already over-amped press corps into a round-the-clock frenzy that would scarcely subside across the next years. “Nixon’s Lawyer John Dean: Trump White House in ‘Cover-Up Mode,” cried USA Today. “Echoes of Watergate Could Spell Danger for Donald Trump,” howled Roll Call. “The Four Bombshells of James Comey,” explained CNN. A giddy Rachel Maddow opened her show by dropping a pencil, before declaring, “This is international warfare against our country and it did not end on election day...”

Cries about Watergate began with a Trump tweet. “Terrible!” the new President wrote on March 4th. “Just found out that Obama had my ‘wires tapped’ in Trump Tower just before the victory. Nothing found. This is McCarthyism!” Trump’s claim was roundly denounced as conspiratorial and false, with numerous outlets declaring it “baseless.” However, while “wiretap” might have been a less-than-ideal word choice, the claim eventually proved far from “baseless.” Trump and his aides had been the subject of FISA collection, thanks in part to court-approved monitoring of figures like Carter Page and Paul Manafort, and in part to “incidental” collection of conversations involving Trump figures in FISA intercepts. It would not be long before specific evidence of Trump Tower collection would emerge.

Nunes by then had by then been tipped off to a pattern of “incidental” unmaskings by the Obama administration, but failed to get answers about the issue from the intelligence services, just as Joe Biden and Chris Dodd had failed to get answers about John Bolton years before. He then went to the grounds of the White House, where National Security Council Senior Director of Intelligence Ezra Cohen-Watnick had reportedly begun looking at unmasking requests by the previous administration. After going to a “secure location where he could view the information,” Nunes gave a brief address to reporters, leveling a major claim. “On numerous occasions,” he said, “the intelligence community incidentally collected information about U.S. citizens involved in the Trump transition”:

Details about U.S. persons associated with the incoming administration, details with little or no apparent foreign intelligence value were widely disseminated in intelligence community reporting… I have confirmed that additional names of Trump transition team members were unmasked… Finally, I want to be clear: none of this surveillance was related to Russia, or the investigation of Russian activities, or of the Trump team. From what I know of right now, it looks like incidental collection.

In what in hindsight looks like a bizarre decision, Obama’s former National Security Adviser Susan Rice stepped forward immediately, in a seeming attempt to quash the Nunes comments, giving an interview to Judy Woodruff of PBS News Hour that would prove disastrous. This exchange would haunt her:

WOODRUFF: In the last few hours we’ve been following a disclosure by the Chairman of the House Intelligence Commitee, Devin Nunes, that in essence, during the final days of the Obama administration, during the transition, after President Trump had been elected, that he and the people around him may have been caught up in surveillance of foreign individuals, and that their identities may have been disclosed. Do you know anything about this?

RICE: I know nothing about this.

Rice stumbled, but was bailed out by Russiagate mania. Nunes inquiries about unmasking inspired accusations that he was in bed with the target of the investigation, i.e. Trump, and needed to recuse himself. This issue, not unmasking questions, dominated media.

“Chairman Nunes is deeply compromised, and he cannot possibly lead an honest investigation,” Nancy Pelosi said.

“Chairman Nunes is falling down on the job and seems to be more interested in protecting the president than in seeking the truth,” added her Senate counterpart, Chuck Schumer.

Coverage made it sound like Nunes had gone to the White House via a false door in the Kremlin. “Nunes Had Secret White House Meeting Before Trump Monitoring Claim,” was how NBC and Ken Dilanian wrote it up. “Who cleared Devin Nunes into the White House?” was Jake Tapper’s take at CNN.

Eventually Democrats succeeded in getting Nunes sidelined. The House Ethics Committee issued a terse announcement in early April, 2017, saying that it was “aware of public allegations that Representative Devin Nunes may have made unauthorized disclosures of classified information” and was “investigating.”

All this took place amid a flood of sexy new Trump-Russia revelations, many bolstered by apparent leaks of classified intelligence. On April 3, 2017, the Washington Post ran a piece titled, “Blackwater founder held secret Seychelles meeting to establish Trump-Putin back channel.” It claimed a meeting “between Blackwater founder Erik Prince and a Russian close to President Vladi­mir Putin” had been brokered as part of “an apparent effort to establish a back-channel line of communication between Moscow and President-elect Donald Trump.”

A New York Times story that same day, titled “Russian Spies Tried To Recruit Carter Page Before He Advised Trump,” was published just ahead of a more damning leak-based story by the Washington Post, claiming a FISA court found probable cause to deem Page an “agent of a foreign power.” These and other leak-based stories seemed to point toward collusion between Trump and Russia, but many served a secondary function of getting ahead of future criticism of FISA/unmasking abuses by painting the surveillance as necessary tool.

“It was setting up audiences to see criticism of FISA abuse as sour grapes, or a distraction from Trump’s Russia problems. No question,” a Senate investigator from that period recalls.

There was just one problem, from the point of view of Democrats. Neither the FISA abuse story nor the unmasking problem was “completely fake and stupid.” Both were real. Moreover, the press hadn’t been completely subjugated yet, leading to nervous moments for just-departed officials from the Obama White House.

In one of the last acts of hardcore investigative reporting on the subject to appear in the legacy press, Eli Lake of Bloomberg published “Top Obama Adviser Sought Names of Trump Associates in Intel” on April 4, 2017. The piece opened with a damning revelation:

White House lawyers last month learned that the 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, according to U.S. officials familiar with the matter.

The story got a lot of attention, but neither Bloomberg nor its competitors seemed interested in following up. That left the issue mostly in the hands of a politically wounded Nunes. On July 27, 2017, his office sent a letter to then-Director of National Intelligence Dan Coats that contained another eye-popping assertion:

This Committee has learned that one official, whose position had no apparent intelligence-related function, made hundreds of unmasking requests during the final year of the Obama Administration. Of those requests, only one offered a justification that was not boilerplate and articulated why that specific official required the U.S. person information…

By that time, subpoenas had already been served to three Obama-era officials over this issue: Rice, CIA chief John Brennan, and Samantha Power, who ironically sat in Bolton’s old chair as Ambassador to the United Nations. After the Nunes letter to Coats, the New York Post reported that it was Power who made 260 unmasking requests in 2016 alone. For an official who apparently requested so much information about Americans caught in foreign intercepts, Power seemed not to know a lot about the issue. In a later House hearing, she said she first heard the term “unmasking” in 2017, after she left office:

You’re asking me a set of questions about my view of… unmasking. I heard the word unmasking for the first time when I read about it in the press… in the context of Ambassador Rice. I had never heard the term unmasking before. I’ve subsequently, over the course of trying to understand… have heard the phrase minimization and deminimization. These are phrases I had never heard.

In that same hearing, Texas Republican Mike Conaway asked Power about staff members making unmasking requests in her name:

CONAWAY: It got made on your behalf [redacted] times.

POWER: I can’t speak to what others were doing without my knowledge.

CONAWAY: No, no, no. Those people worked directly for you, and they used your name to justify the unmask. That’s how we got that list.

POWER: And they did a tremendous iob.

Eventually it would come out that in a handful of transition months between November 17, 2016 and January 17, 2017, an absurd 39 different officials made unmasking demands involving Flynn. Power, who was on the record saying she didn’t even know what unmasking was at that time, technically accounted seven of those requests, which would be declassified and released years later. It looked like the Chris Dodd era of unmasking FISA targets “infrequently” was long over, and the NSA’s worry about a plague of “non-compliant” searches was true.

After Nunes sent his letter to Coats about Power and other figures, Rice gave another interview on unmasking, this time to Manu Raju of CNN. In it, she contradicted her earlier story about knowing “nothing.” As CNN put it, “she unmasked the identities of senior Trump officials to understand why the crown prince of the United Arab Emirates was in New York late last year,” adding:

The crown prince, Sheikh Mohammed bin Zayed al-Nahyan, arrived in New York last December in the transition period before Trump was sworn into office for a meeting with several top Trump officials, including Michael Flynn, the president’s son-in-law, Jared Kushner, and his top strategist Steve Bannon, sources said.

The location of the meeting? The Trump Tower.

This was according to CNN, by way of Rice. As for the “secret” trip to Seychelles that involved Blackwater chief Erik Prince, Middle East sources told CNN it had been an effort by UAE officials “to build a relationship with senior members of the Trump team who would be working in the administration.” Take that with as many grains of salt as you like, but the key detail involved Prince, who told CNN he had met a Russian person, but fleetingly — “about as long as one beer.” How had the Washington Post and other outlets learned there was a Russian there at all? Incredible details of private meetings in secluded locations had magically become a regular feature of news during this time, and it seemed like no one noticed or cared.

At the end of that year, in December of 2017, the House Ethics Committee quietly announced that Nunes was cleared, spurring a handful of the “Footnote: Opps”-type stories that would often appear six months or a year after Russiagate bombshells. If you look you’ll see Nunes sounding off on the “unbelievable eight months” it took for him to be cleared, not mentioning the double humiliation of being accused of leaking classified information while half of Congress was coughing up classified intelligence seemingly on a daily basis still (the Times was just ten days away from a sparsely attributed bombshell about George Papadopolous, “dirt,” and “thousands of emails”).

It wasn’t until the release of last week’s FBI 302s, however, that the full perversity of the Nunes affair was revealed. It’s one thing to accuse a Committee head of leaking classified intellience when he’s actually giving the public the general outlines of a pattern of serious surveillance abuses, but to do that while the minority members are reportedly talking about using leaks to “topple the administration,” or smearing targets not for what they did but because they were the “issue of the day,” and worst of all, seeking to get in on the very “unmasking” shenanigans Nunes complained about — it’s all emblematic of the arrogant lunacy that infected #Resistance bureaucracies during Russiagate.

The FBI release last week furthermore finally draws attention to what original HPSCI investigators worried about. It was never just lying to the FISA court, or abuse of unmasking procedures, or leaks, but all of these things in combination.

The underlying issue was that War on Terror innovations made it a simple matter for political staffers and agencies like the FBI to access FISA information without even seeking a warrant, and a lack of accountability for media leaks of FISA material meant incumbents had an awesome new power to shape public narratives, before, during, and after elections. If the press had wanted to, it could have seriously investigated these issues when the FISA court — not the Trump administration, and not even a Republican-led Intelligence Committee — released its scathing report on widesread abuses on April 26, 2017. Too busy with pre-Mueller mania, it didn’t even notice.

Now those questions are finally back on a burner. The Nunes-era HPSCI staffer who talked about a “strange sense of optimism” is probably right to feel it, as multiple sources tell Racket that unmasking and FISA abuse are being looked at in several agencies, i.e. not just at Justice Department and the Patel-run FBI, as part of the ongoing Russiagate probes.

“It’s all part of the picture,” said an executive branch source.

Not everyone contacted for this story felt the same way about the recent releases. Though the FBI spoke with the “Committee Witness” for six years, they never brought charges, and an Inspector General report last year raised questions about the reliability of the “whistleblower. But these investigations aren’t just about putting this or that politician’s head on a wall. Even if every individual case doesn’t get made, there’s a bigger picture, which involves identifying and stopping obvious systemic abuses. Will optimism on this front turn out to be warranted?