Spy agencies changed rules, making it easier to unmask members of Congress
Former President Barack Obama’s intelligence chief issued revised procedures in 2013 that made it easier for executive branch officials to “unmask” the names of lawmakers or congressional staffers caught up in intelligence intercepts overseas, according to interviews and documents reviewed by The Hill.
Procedures issued by Director of National Intelligence James Clapper in March 2013 formally supplanted a 1992 set of rules that made the dissemination of names of intercepted lawmakers or congressional aides an act of last resort.
The new standard allowed for a lawmaker’s or staffer’s name to be unmasked if “an executive branch recipient of intelligence” believed that learning “the identity of the Member of Congress or the Congressional staff is necessary to understand and assess the associated intelligence and further a lawful activity of the recipient agency,” according to a memo released earlier this month by the DNI's office with little public fanfare.
Under the previous rules authorized by former President George H.W. Bush and his CIA director, Robert Gates, the CIA chief himself had to give “prior written approval” that the release of the identifying information had met “a legitimate foreign intelligence or counterintelligence need” that “cannot be satisfied in any other fashion.”
In the absence of such a finding, executive branch spy agencies had to redact or delete the name of any congressional employee from intelligence reports under a process known in the intelligence world as minimization. The minimization practice exists to protect Americans’ privacy because most spy intercepts overseas are captured without a court-approved warrant required by the Fourth Amendment of the Constitution.
Intelligence officials familiar with the process say there was no political motive behind the new standard and that the changes authorized by Clapper largely codified practices that had been adapting in the intelligence community over several years.
Congressional leaders were consulted as practices within the intelligence community evolved following the Sept. 11, 2001, terrorist attacks. The placement in 2005 of a new director of national intelligence above the CIA in the intelligence community power structure was also a factor, the officials said.
“The document we created in 2013 was essentially a way of incorporating those changes already in practice,” said Robert Litt, who oversaw the process as the Office of Director of National Intelligence general counsel.
Clapper's successor as DNI, former Sen. Dan Coats (R-Ind.), reissued the 2013 congressional unmasking rules as an official directive on June 29, signaling the Trump administration is comfortable with the same procedures.
Yet the changes appear to have had a significant effect on the practice of unmasking.
The frequency of unmasking of Capitol Hill figures has increased in the last few years to as often as one per month, compared to a few per year historically, say sources in the intelligence community.
This has raised concerns in congressional circles.
Two 2016 GOP presidential candidates, Sens. Rand Paul (Ky.) and Lindsey Graham (S.C.), have said they believe their identities were unmasked by Obama intelligence officials. The intelligence community has not confirmed that information publicly.
Obama’s former national security adviser Susan Rice came under fire from the right earlier this year over suggestions she had asked for the identities of Trump transition officials in documents. Rice said she had not asked to unmask the names of Trump associates for political reasons.
The 1992 rules were designed to make the release of congressional identities a rare exception, recognizing the separation of powers clause in the Constitution that created co-equal legislative, judiciary and executive branches in U.S. government, officials told The Hill. The rules also included a commitment that Congress in most cases be notified if one of its lawmakers or staff was unmasked by the intelligence community, according to a copy of the memo made public on the DNI’s web site. Gates wrote in his memo that he would “resolve all close questions” in favor of notification.
Officials said the notification standards were left mostly intact by Clapper but actual practices inside intelligence agencies on who could seek and who could approve congressional unmaskings began evolving well before Clapper’s memo.The DNI, for instance, took over from the CIA the approval process in the mid- to late 2000s, and intelligence analysts and intelligence community leaders expressed a need to more aggressively share the names of intercepted lawmakers or their aides to react to more complex threats, the officials said.
By 2013, Clapper wanted to memorialize the changes that had occurred in practice as a formal set of procedures that supplanted the Gates standards, according to Litt.
“DNI Clapper very much wanted all ODNI processes to be documented in ODNI procedures rather than legacy CIA procedures,” Litt said
Clapper did not return a message seeking comment.
Litt said by the time he drafted the 2013 rules, he did not believe he was changing policy, because the procedures had been evolving for years.
“We believed we were formalizing simply what we had inherited,” he explained.
But Clapper’s March 29, 2013, memo to all spy agencies showed just how far the intelligence community’s protections of congressional privacy had changed from the 1992 Gates standard.
Gone was the "last resort" language from 1992 that mandated a congressional unmasking could occur only if the need “cannot be satisfied in any other fashion.”
The new guidance also empowered intelligence agencies that intercepted information from or about a congressional employee without a warrant to ask the DNI to unmask the name on their own — without a request from leaders — before disseminating an intelligence report if they believed it was “necessary” for others to “understand and assess” the intelligence reports.
Such proactive unmasking language was not contained in the 1992 rules.
Likewise, the old rules required written authorization from only the CIA director. The new rules allowed the DNI’s chief lawyer to make the decision in most cases.
Officials stressed that the Gang of Eight leadership group in Congress — the House Speaker, House minority leader, Senate majority leader, Senate minority leader and the bipartisan heads of both chambers’ intelligence committees — were consulted about the changes in rules and routinely are alerted when a congressional identity has been unmasked.
The officials acknowledged, though, that it was possible rank-and-file members of Congress were not alerted to the changing privacy standard or instances when a congressional employee has been unmasked.
Officials said the rule changes came at a time when threats to members of Congress and their staffs were increasing, including increasingly aggressive hacking and counterintelligence efforts by foreign powers.
They declined to be more specific, though Rep. Dana Rohrabacher (R-Calif.), the chairman of the subcommittee overseeing Eurasia policy, recently acknowledged he received a warning from the intelligence community in 2012 that Russia was trying to “recruit” him as an influence agent.
Rohrabacher also recently parted ways with his top staffer on the subcommittee because of concerns about Russian efforts to influence the panel.
The Clapper memo reflected other significant changes from the Gates procedures.
For instance, the 1992 rules exempted the president, vice president, the secretaries of Defense and State and the president’s national security adviser as the only executive branch officials who could request an unmasked congressional identity without first getting written approval from the CIA director.
Clapper’s procedures expanded that circle of exempted officials to include “the senior deputies and senior advisors for these named principles,” meaning, for instance, Obama’s deputy national security adviser Ben Rhodes could request congressional unmaskings on behalf of Rice, his boss, as could the deputies and senior advisers to Secretary of State John Kerry and Defense Secretaries Ash Carter and Chuck Hagel.
Clapper’s rule did, however, put a limitation on the expanded circle of executive branch officials who could unmask without going through the normal procedures. It did so by declaring “the dissemination of Congressional identities to these named principles pursuant to a special request does not authorize further dissemination of that information within the principles department or agency.”
An intelligence official directly familiar with the 2013 rules told the Hill, “We understood we were more than doubling the universe of those who could make special requests outside the normal de-minimization process and that language was added to ensure we did not accidentally create downstream leaking of information.”
If a special requestor wanted to share the unmasked congressional names more widely throughout their agency, they had to submit a “routine request” through the normal DNI channels to get permission, the new rules stated.
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