tabletmag | A few weeks ago, Americans learned, from a letter
sent by Sen. Charles Grassley (R-Iowa) to former National Security
Adviser Susan Rice, that Rice had sent herself an unusual “email for the
record” on Barack Obama’s last day in office. In the email, Rice
claimed to be memorializing a high-level meeting of Obama officials in
January 2017, at which they discussed whether to limit the information
they were sharing with President-Elect Donald Trump on the investigation
of Russian interference in the 2016 election.
Former federal prosecutor Andrew C. McCarthy, writing at National Review Online,
concluded that the purpose of this meeting was to keep Trump in the
dark about the extent to which he himself was under investigation. He
concludes from the fact of the email’s existence and its odd timing that
the device of briefing Trump on limited portions of the documentation
was a tactic —one intended to obscure the fact that Trump was a target
of the investigation, even if he was not technically the subject of it. In fact, McCarthy wrote, given the type of investigation, Trump was effectively the main target.
In
establishing this, McCarthy alluded to an aspect of counterintelligence
investigations and surveillance that Americans tend to know little
about. This is McCarthy’s key passage (emphasis in original):
Whether eavesdropping is done for national-security purposes under FISA [the Foreign Intelligence Surveillance Act] or for law-enforcement purposes under criminal statutes, the objective is always the same: to uncover the full scope of a conspiratorial enterprise.
The point is to identify all of the conspirators, and especially to establish the complicity of the most insulated leaders. Carter Page may have been the surveillance target named in the FISA warrant, but he was of low rank in the alleged conspiracy. The point of monitoring Page was to determine exactly what he was doing and, just as crucial, who was directing him.
McCarthy’s
point here means that the surveillance authorized by the FISA warrant
wasn’t limited to the personal communications of Carter Page; it only
began there. To understand the “conspiratorial enterprise,”
investigators and analysts have to follow up on all the entities Carter
Page is in contact with.
And
they don’t stop there. A conspiratorial enterprise is bound to involve
communications beyond Carter Page’s first circle of direct contact, so
investigators need to look at the next circle as well. They may need to
look further, depending on the communications patterns they find in the
first two circles radiating from their named target. But under current
rules, it’s the first two that government investigators can routinely
gain access to in order to “uncover the full scope of a conspiratorial
enterprise,” without needing to apply for further warrants.
This convention is referred to as the “two-hop” rule, and, like many provisions of surveillance law, has come in for criticism by civil libertarians. The original FISA was passed in 1978, before the internet age. After 9/11, information technology enabled surveillance operators under the Patriot Act, which complemented and in some ways overlapped FISA surveillance, to inaugurate a “three-hop”
rule exploiting computer-networked communications to look well beyond
the first-order contacts of a central subject (under Patriot Act
surveillance, a terror suspect). This was done via presidential order
and came as an unwelcome surprise to the public when the practice was revealed, and initially dubbed “warrantless wiretapping,” in 2005.
