Napolitano: Susan Rice and 'unmasking': Americans have a right to know what Team Obama did

Susan Rice will testify secretly this week before the House Permanent Select Committee on Intelligence which is investigating whether Russian intelligence attempted to influence the 2016 presidential election and whether she and others in the Obama administration used the NSA and any other domestic or any foreign intelligence assets to spy on President Trump before he was president. She has admitted to her knowledge of the surveillance of President-elect Trump.

Just to be clear, there are two kinds of unmasking. In the ordinary course of intelligence work, the White House may request a transcript of a surveilled conversation or some communication between an American and a foreign agent. And it might be necessary for the White House fully to appreciate the content of the communication to know the identity of American; so that American is then unmasked. That is a lawful unmasking. 

But if the unmasking was done for political reasons or to embarrass the American or to embarrass a person of affiliated with the American, like the president-elect of the United States, that's a felony.

Susan Rice is a known public liar. She lied about the cause of the attacks at Benghazi on all five network Sunday morning talk shows in September 2012, and she lied about spying and unmasking before she admitted she did it.

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Since our government is legally permitted to lie to us -- though we can be prosecuted for lying to it -- her lies are not criminal.

Yet she will soon have a very difficult time at the hands of members of Congress wherein she can be prosecuted for both lying to Congress and for misleading it.

One can give a truthful answer to Congress, but if it is incomplete or misleading, one can still be prosecuted for misleading.

As President Obama’s National Security Adviser, Rice had the highest security clearance. As such, she could order transcripts of the telephone conversations, emails, and text messages of any person she wanted as well as the names of participants.

Unmasking for national security purposes -- to help her understand the gravity of the communication by learning the identity of the participants -- is lawful and part of her then-job.

Unmasking for political purposes or revealing that which was unmasked to a person who lacked a security clearance is a felony. The use of raw intelligence data for political or personal purposes is a grave threat to personal liberty in a free society.

In an attempt to humiliate the incoming Trump administration, the Obama folks made a last-minute change in the rules -- where everybody in the intelligence community was permitted to share raw data with everyone else.

Here are three important questions: Was this done in order to frustrate the new president? Was it done in order to paint a false picture of him? Is there any criminal activity there which is akin to hacking?

I'm angry that Rice’s testimony will be in secret because the American public is entitled to know what Susan Rice and the Obama people did, and the American public is entitled to know what the Congress knows and what the Congress will do about it. 

When the government operates in secret like this, Democracy dies. Does the government work for us or do we work for the government?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.