Susan Rice's Unlawful Spying: What Laws Were Broken?

Susan Rice is an American diplomat, policy advisor, and public official. She served as the 22nd director of the United States Domestic Policy Council from 2021 to 2023 and was the 27th US ambassador to the United Nations from 2009 to 2013. In 2017, reports emerged that Rice had requested the identities of US persons in raw intelligence reports on the Donald Trump transition and campaign. This practice, known as unmasking, is not necessarily illegal, and Rice has denied any wrongdoing, stating that she had nothing to do with leaking information. However, some have accused her of playing politics with classified information. So, did Susan Rice break the law?

Susan Rice's unmasking requests

Susan Rice, a former national security advisor to President Obama, has been at the centre of controversy regarding her unmasking requests. Unmasking is a legal process where senior government officials request the identity of an American citizen who has appeared unnamed in intelligence reports. It is considered a common practice, with data showing thousands of unmasking requests made annually.

Rice acknowledged that she had made unmasking requests, but denied any wrongdoing, stating that she had not leaked any information. She argued that her requests were necessary to understand the intelligence reports and assess their importance, which is a legitimate reason for unmasking under USSID 18. However, some critics, including Republican lawmakers and right-leaning pundits, accused her of abusing her authority and claimed that her actions were politically motivated.

The controversy surrounding Rice's unmasking requests centred on her alleged involvement in "unmasking" Trump's incoming national security advisor, Michael Flynn, and other Trump officials during the presidential transition. A report by Bloomberg View's Eli Lake claimed that Rice had requested the identities of U.S. persons in raw intelligence reports related to the Trump campaign and transition. This revelation sparked accusations that the Obama administration was spying on Trump and his associates.

Despite the criticism, there was no conclusive evidence found that Rice or any other official acted improperly or broke the law. Congressional investigations by both Republican- and Democratic-controlled committees found no wrongdoing on Rice's part. National security experts also supported Rice, stating that her unmasking requests were normal and appropriate for a national security advisor. Additionally, an inquiry by federal prosecutor John Bash, appointed by Attorney General Bill Barr, concluded in 2020 with no findings of substantive wrongdoing.

Legality of unmasking US citizens

Unmasking is a process by which the identities of US citizens, who are not the targets of legal US intelligence surveillance, are revealed to government officials reviewing intelligence reports. US citizens who are not targets of surveillance are typically referred to in classified reports as "US Person One", "US Person Two", and so on.

The process of unmasking is not widely authorised and is limited to the agency that collected the information. In the case of Susan Rice, who served as the National Security Advisor to President Barack Obama, unmasking requests would have to be approved by the National Security Agency (NSA). According to NSA Director Mike Rogers, only 20 people within the entire agency have the authority to unmask identities.

The legality of unmasking US citizens is dependent on certain conditions outlined in United States Signals Intelligence Directive 18 (USSID 18). This directive establishes procedures for "minimising" or "masking" the identities of US citizens to protect their privacy rights. While the identities of US persons are typically redacted in intelligence reports, Section 7.2(c) of USSID 18 permits unmasking if it is deemed necessary to understand foreign intelligence information or assess its importance. Justifications for unmasking include situations where the information indicates that the US person is an agent of a foreign power, is engaged in the unauthorised disclosure of classified information, may be involved in a crime, or may be the target of hostile intelligence activities of a foreign power.

In the case of Susan Rice's unmasking requests, there were allegations that she may have acted improperly or with political motivations. However, unmasking is not inherently illegal, and most security experts agree that it would be challenging to prove any criminal wrongdoing. To establish a crime, a prosecutor would need to find evidence that Rice's unmasking requests were made solely for political purposes, which would require proof of her intent.

In August 2017, H.R. McMaster, who succeeded Susan Rice as National Security Advisor, concluded that "Rice did nothing wrong". Additionally, in May 2020, Attorney General Bill Barr appointed federal prosecutor John Bash to examine unmasking conducted by the Obama administration. The inquiry concluded in October 2020, finding no substantive wrongdoing.

It is important to note that the legality of unmasking US citizens is a complex issue, and there are safeguards in place to minimise the potential for politicisation of the unmasking process. While there may be concerns and allegations surrounding specific instances of unmasking, the overall process is designed to balance the need for intelligence gathering with the protection of US citizens' privacy rights.

Rice's intent

Susan Rice's intent in "unmasking" the identities of Trump officials was to better understand foreign intelligence information and assess its importance. As National Security Advisor, it was her job to seek out information on U.S. surveillance efforts and determine the importance of intelligence reports she received. Rice stated that she had absolutely no reason to believe that any of the unmasked individuals were Trump or his campaign aides.

Rice's actions were likely within the law, as government officials have broad powers to request and receive information about Americans under federal eavesdropping rules. To break the law, Rice would have had to purposefully leak such information to the media or give it to someone not entitled to possess it. There is no evidence that Rice leaked any information or had any knowledge of the leaking of Michael Flynn's conversations with the Russian ambassador, which led to his resignation.

However, Rice was a "deeply unpopular figure" in the intelligence community and was known for pushing the boundaries of what was allowed. John R. Schindler, a former NSA analyst, wrote that "Rice didn't like to play by the rules, including the top-secret ones" and that she had asked the NSA to do things they regarded as unethical and perhaps illegal.

In conclusion, while Rice's stated intent for unmasking the identities of Trump officials was to fulfil her role as National Security Advisor and better understand foreign intelligence, there are concerns about her adherence to rules and her potential political motivations.

Rice's leaking of information

Rices' leaking of information

Susan Rice, a former national security advisor to President Barack Obama, has been at the centre of controversy regarding allegations of spying on Donald Trump's campaign associates and leaking classified information. Rice has denied these allegations, stating that she had no knowledge of US intelligence agencies intercepting communications between Trump campaign associates and Russian officials.

Rice acknowledged that she had requested the "unmasking" of unidentified names during her tenure, but maintained that there was nothing improper about these requests. The "unmasking" process involves revealing the identities of Americans who communicated with foreign individuals, which is a standard practice in intelligence jargon. However, critics argue that Rice may have abused her lawful authority by seeking the names of Trump transition or campaign officials and then spreading the information through improper channels.

Rice's actions have been scrutinised by House Intelligence Chairman Devin Nunes, who suggested that Rice played a role in the wiretapping controversy. Nunes claimed to have seen intelligence reports that included the names of Trump transition team officials, indicating potential surveillance activities. However, Adam Schiff, a Democrat on the committee, countered that the White House selectively provided Nunes with intelligence documents intended for the entire congressional panel.

While Rice's actions may have been within the broad powers granted to high-level US national security officials, the leaking of Michael Flynn's conversations with Russian ambassador Sergei Kislyak remains illegal. Rice denied any involvement in this leak, stating that she "leaked nothing to nobody and never have and never would". The true source of the leak regarding Flynn's conversations remains unknown, but it sparked controversy and ultimately led to Flynn's resignation.

In conclusion, while Susan Rice's actions in requesting the unmasking of unidentified names may have been legal, the subsequent leaking of information regarding Michael Flynn's conversations was illegal. Rice has denied any involvement in the leak, and there is no concrete evidence to suggest otherwise. The controversy surrounding Rice's actions highlights the delicate balance between national security and political implications, with some arguing that her requests may have been motivated by concerns about potential violations of the Logan Act by Trump transition officials.

Potential violation of the Fourth Amendment

The Fourth Amendment of the US Constitution protects the American people from unreasonable searches and seizures. It states:

> "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Fourth Amendment was created in response to increasing infringements on privacy in the colonies and in England. "General warrants" and "writs of assistance" allowed officials to search and seize without warrants or probable cause.

In the modern era, the Fourth Amendment has been invoked in debates about mass surveillance programs, which some critics argue are too invasive to be justified by the Amendment's "probable cause" clause.

In 2017, Susan Rice, President Obama's national security advisor, was accused of ordering the "unmasking" of the identities of Trump officials who were caught up in foreign intelligence intercepts. Some argued that this could be a violation of the Fourth Amendment.

According to Robert Barnes, a LawNewz columnist and California trial attorney, the unmasking of US citizens' names could be a violation of the Fourth Amendment if it was not related to criminal conduct or imminent security risks. He argued that the First and Fourth Amendments do not have a "talking to foreigners" exception, and that political speech in private is a right protected by the First Amendment.

However, most national security experts disagreed that Rice had committed a crime, as it would be very difficult to prove that she unmasked the identities for purely political purposes. Attorney and national security expert Mark Zaid stated:

> "At this point, there is absolutely no indication she committed a crime. For one thing, we still don’t know exactly what she did or did not do, and there are legitimate and lawful reasons why US persons’ names would be unmasked."

Rice herself denied that she had done anything improper, stating:

> "I leaked nothing to nobody. And never have and never would."

In May 2020, Attorney General Bill Barr appointed federal prosecutor John Bash to examine unmasking conducted by the Obama administration. The inquiry concluded in October 2020 that there was no evidence that any unmasking requests were made for political or improper reasons.

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