Top national security officials refused to say Tuesday whether they collected and then “unmasked” the communications of a prominent GOP senator and 2016 presidential candidate last year — throwing a new wrinkle in the Trump administration’s push to renew far-ranging spy powers.
Sen. Lindsey Graham, South Carolina Republican, said he’s received information that leads him to believe the Obama administration picked up one of his conversations with a foreign leader, and his identity was later revealed within intelligence circles, a process dubbed unmasking.
“Do I have the legal right as a United States senator to find out if my government is monitoring a conversation between me and the foreign leader?” Mr. Graham asked Tuesday at a Senate Judiciary Committee hearing. “Should I be worried about that conversation falling into the hands of political people?”
He said he’s been trying to get an answer for roughly a month.
Bradley Brooker, the acting general counsel for the Director of National Intelligence, replied that he’s working on Mr. Graham’s questions but still couldn’t answer them.
“Am I ever going to get to know the basic facts?” Mr. Graham demanded. “I just want to know what consequence as a senator blows my way.”
His questions come as Congress is debating how to handle Section 702 of the Foreign Intelligence Surveillance Act, which lets federal intelligence agencies monitor communications for terrorism investigations as long as the target is a foreigner located outside the U.S.
When that foreigner is communicating with someone in the U.S., those communications can be incidentally monitored — raising critical privacy and civil liberties questions.
Americans’ identity is generally not supposed to be attached to their communications, but officials can request it — the unmasking process — if they believe it’s relevant to gaining an understanding of the information.
President Trump has indicated he believes his communications may have been scooped up last year, and his former top security adviser, Michael Flynn, did have his communications with a top Russian official monitored, according to news reports.
Mr. Flynn’s identity was unmasked, and members of Congress have said they are probing that decision.
Section 702 is slated to expire at the end of this year unless Congress reauthorizes it, and its effect on Americans has become a flash point.
A critical piece of information members of Congress have demanded to know is how many Americans have had their communications incidentally collected. Director of National Intelligence Dan Coates has told them it is likely impossible to say, and even the effort to try to figure out a number would distract from important anti-terrorism work.
During Tuesday’s Judiciary hearing, senators also pointed to harsh criticism from a federal judge who oversees FISA operations, and who in an opinion earlier this year suggested a lack of candor at the National Security Agency.
“On October 24, 2016, the government orally apprised the Court of significant non-compliance with the NSA’s minimization procedures involving queries of data acquired under Section 702 using U.S. person identifiers,” Judge Rosemary M. Collyer wrote. “The full scope of noncompliant querying practices had not been previously disclosed to the Court.”
“That’s kind of tough language from the FISA court,” said Sen. Patrick J. Leahy, Vermont Democrat. “You can see the kind of concern on this panel.”
Intelligence officials counter that they self-reported their concerns about how they were collecting information and corrected the problem themselves, with the cooperation of the court.
Stuart Evans, deputy assistant attorney general for intelligence at the Justice Department, said the agency never has had an intentional violation of Section 702’s rules.
“We all agree that there needs to be a balance to strike between protecting the civil liberties of Americans and protecting the American public from attacks as well,” said Carl Ghattas, executive assistant director at the FBI. “We have all stated very emphatically the value of this section in terms of helping us protect the American public from attacks. It is an absolute critical tool for us.”
Key Senate Republicans have introduced a full permanent extension of Section 702.
Sen. Dianne Feinstein of California, the committee’s ranking Democrat, said she supports an extension, but said it must have a sunset, which she says is the only way for Congress to do oversight.
“A sunset allows us to review and revise such as may be necessary due to technology changes, as well as other changes that happen at such a rapid pace,” said Ms. Feinstein.
Mr. Brooker countered that Congress has ability to oversee with or without the sunset provision — but acknowledged the administration would rather have an extension with a sunset than no extension at all.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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