John Durham Must Investigate 'Unmasking'

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Partisans may cheer or jeer prosecutor John Durham, appointed by Attorney General William Barr to investigate how the FBI came to investigate Russian involvement in the Trump 2016 campaign. Of deeper interest to thoughtful people across the political spectrum is the light this investigation may shed on abuses of government surveillance that have occurred under both Republican and Democratic administrations. 

Given Durham’s reputation for being both fearless and fair, the U.S. attorney for the District of Connecticut seems ideal for the job: He has investigated government misconduct ranging from the fiasco surrounding Boston mobster Whitey Bulger to CIA “enhanced interrogation” methods. 

Abuse of power is what President Trump’s defenders are hoping Durham will prove. They want him to delve into whether the government gave a secret court sufficient background about the political origins of the infamous Steele dossier used to justify warrants for Trump campaign officials under the Foreign Surveillance Intelligence Act. They also want Durham – following up an internal investigation by Department of Justice Inspector General Michael Horowitz -- to investigate the FBI’s selection of investigators who, in the words of conservative commentator David French (and no admirer of Donald Trump), lived in a “toxic stew of anti-Trump bias.” 

Remembering fired FBI Agent Peter Strzok’s texted promise to Lisa Page to “stop” Trump, Republicans believe that the Fourth Amendment rights of Mafia members have been given more consideration than the rights of Trump and his people. Fair enough. But along the way, Durham should also examine other issues potentially relevant to the conduct of that investigation -- issues of interest to Americans of all political persuasions. 

For example, Durham should investigate the extent to which “unmaskings” might be used by administrations of both parties against their critics. This term refers to the identification of American citizens or residents who inadvertently get caught up in government surveillance of foreigners. FISA, out of concern for Fourth Amendment prohibitions against warrantless “searches and seizures,” was drafted to generally protect the identities of “U.S. persons” – citizens and residents of the United States.  

Unmasking is supposed to occur only when an official deems it necessary to know the identity of the “U.S. person” in the call to understand the underlying intelligence. Short-lived National Security Adviser Michael Flynn and his controversial call with the Russian ambassador was one such American fish netted by the government’s massive surveillance trawler.  

Flynn’s prior behavior and contacts justified such tracking. But why did President Obama’s U.N. ambassador, Samantha Power (or someone working for her), request more than 260 other unmaskings? And is there any truth to Trump’s assertion to The New York Times that Susan Rice, the Obama administration’s national security adviser, broke the law in her unmasking of Trump associates? Why did agencies’ searches of names or phone numbers of U.S. citizens in surveillance databases explode from 9,500 in 2013, to 30,355 in the election year of 2016? 

Many Republicans suspect these unmaskings and surveillance activities were politically motivated. For their part, Democrats might note that a report from the director of national intelligence shows that unmaskings of U.S. persons increased from 9,217 in 2015-2016 to 16,721 in 2018 under the Trump administration.    

Is there a reason for this growth? Or is this a case of – to quote The Who – “meet the new boss, same as the old boss”? 

Durham should investigate exactly how incidental the incidental collection of communications from the Trump transition team really was. Did some officials view the surveillance of foreign nationals as a backdoor to collecting the communications of U.S. political opponents? Was Michael Doran, former senior director of Obama’s White House National Security Council, correct when he said, “Somebody blew a hole in the wall between national security secrets and partisan politics”? If this is true, has that wall been restored or breached during the current administration? 

Durham should also investigate a related issue about how the FBI works with major-party political campaigns to address problems uncovered through legitimate surveillance. For example, when an employee of Sen. Dianne Feinstein was revealed to potentially be a Chinese agent, the California Democrat was discreetly informed. Why was a similar notification not given to, say, Republicans Chris Christie or Rudy Giuliani, two senior Trump campaign aides in an excellent position to quarantine anyone suspected of being compromised? Will the 2020 Democratic nominee and foreign policy advisers be accorded the same courtesy as Feinstein, or will they be treated like Trump? 

As thorough as Durham promises to be, his investigation won’t be complete unless we can be assured that the mere accusation of foreign influence is insufficient to suspend Fourth Amendment protections. Like a home inspector, John Durham has a priceless chance to ferret out any institutional rot underneath FISA, including the normalization of unmasking, which apparently continues apace. 

Gene Schaerr, a Washington, D.C.-based attorney and former associate counsel to President George H.W. Bush, serves as general counsel to the non-partisan Project for Privacy and Surveillance Accountability.

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