by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Andrew McCarthy uses his latest National Review Online column to place the controversy over surveillance of Trump associates in context.
The reported intelligence collection efforts raise four separate questions that are too often conflated in the commentary:
1) Should the communications of Trump associates (all of whom are U.S. citizens, so far as we know) have been intercepted in the first place?
2) Regardless of whether the interception was proper, should the identities of the American citizens have been “masked” in order to protect them from, among other things, being smeared as subjects of government investigations?
3) Regardless of whether masking was called for, should the fact that the American citizens’ communications had been collected and reviewed in connection with investigations — presumably, intelligence investigations, not criminal probes — have been disclosed throughout the “community” of U.S. intelligence agencies?
4) Should that fact have been publicly disclosed, including in leaks to the media? (Spoiler alert: As my use of “leaked” indicates, public disclosure is a major no-no. In fact, it’s a felony no-no.)
Let’s deal with the easy stuff first. There is nothing wrong with incidentally intercepting the communications of American citizens in the course of legitimate foreign intelligence collection. To analogize to routine law-enforcement activity, when police do physical surveillance on a suspect (i.e., when they follow a suspect around), or if they tap the suspect’s phone pursuant to a court order, they will necessarily observe the activities of innocent (and not so innocent) Americans. They cannot be expected to close their eyes to those activities; such observations are not only legal, they are necessary to understand the context of the suspect’s behavior. Indeed, one of the objectives of a wiretap in a criminal investigation is to identify unseen members of a conspiracy.
Thus, as long as there was a valid intelligence purpose for targeting the foreign subjects with whom Trump associates interacted, the interception of the associates’ communications would have been entirely proper.
Of course, any legitimate government power can be abused. If the government’s real objective was to intercept the communications not of the foreigners but of the Trump associates, such that the agencies’ “targeting” of the foreigners was merely a pretext (i.e., they were monitored only because they were in contact with Trump associates, who were the real targets), it could hardly be said that the associates’ communications were intercepted “incidentally.”