“Updated Patriot Act Finally Legalizes 80% Of Current FBI Operations”Sometimes I think I live in a completely different reality than everyone else. Or maybe I’m the only one who doesn’t have amnesia. Or maybe it’s just that everyone working in the news media is a child with no perspective going back further than his or her recent high school graduation.
—Headline in The Onion, May 14
The latest thing that has set me off is the reporting on the “unmasking” that has been going on in U.S. government agencies. There are lots of examples of what I am talking about, but let’s pick on an article that appeared in The Washington Post last week. Here is the lead paragraph: “Three Republican senators on Wednesday made public a declassified list of U.S. officials, including former vice president Joe Biden, who made requests that would ultimately ‘unmask’ Trump adviser Michael Flynn in intelligence documents in late 2016 and early 2017—a common government practice but one that some conservatives have seized on to imply wrongdoing.”
Did I miss something? I certainly accept the Post’s assertion that unmasking is “a common government practice,” but when did that happen? More importantly, when did it become an unnoteworthy circumstance in the Post’s journalistic estimation?
Were none of the four reporters credited with working on the article old enough to remember—or at least read about—the huge debate we had over the Patriot Act?
In the wake of the 9/11 attacks, there was understandably a huge spike in the volume of surveillance applications under the Foreign Intelligence Surveillance Act (FISA). As the possible terrorists being monitored were not U.S. citizens, they did not get protections under the U.S. Constitution, but there was concern about the U.S. citizens (incidental capture, as it was termed) that monitored foreigners might be talking to. What about their rights? The solution to this problem was to mask the names of any U.S. citizens that might be picked up. Extremely senior U.S. government officials, however, could unmask those names if there was a demonstrable security concern. In other words, don’t worry, civil libertarians, Americans’ privacy rights are being looked after. Nothing to be paranoid about.
“In 2019,” our Post correspondents inform us nonchalantly in the final paragraph of their article, “the NSA unmasked just over 10,000 U.S. individuals’ identities, a substantial decrease from the previous year, but still more than in the final year of the Obama administration, according to government records.”
Uh, okay. Maybe it’s just me, but that kind of seems like a lot. Remember, they are supposed to be surveilling only non-Americans. There is a whole different process involved when you actually want to surveil U.S. citizens. You’re supposed to get a warrant from a judge.
The Post’s journalistic nonchalance is presumably because this isn’t an article about American civil liberties. It is an article reassuring us not to be concerned about the unmasking that was occurring during the Obama Administration. Nothing to worry about, folks. This stuff happens all the time.
The thing is, even if we accept that, yes, lots of foreigners’ conversations get monitored by our intelligence services, and yes, a lot of Americans get caught up in that monitoring, and sure, thousands of those Americans have their identities revealed even though they are supposed to have constitutional protections from that kind of fishing-expedition type monitoring, someone still needs to explain to me something else.
You see, because there is nothing I can possibly do about it, I pretty much have to accept that my country’s government is doing all this electronic monitoring and is frequently using a back-door to the Constitution to listen in on Americans without keeping it anonymous. All I can do is hope that this is mostly being done by intelligence professionals whose overriding priority is the country’s security. Should I be concerned that, in the final hours of the Obama Administration, no fewer than 39 officials—including Vice-President Joe Biden and political appointees John Brennan, James Clapper, Samantha Power and Denis McDonough—took the trouble of requesting the unmasking of the incoming National Security Advisor of the newly-elected administration?
Maybe they had a good reason. We now know, thanks to an email that for some reason outgoing National Security Advisor Susan Rice sent to herself on her last day on the job, that FBI director James Comey had concerns about Flynn’s phone calls with the Russian ambassador. He must have also had concerns about incoming President Trump as well because he did not do want you would expect him to do in that situation, i.e. advise his new boss that there were concerns about the new National Security Advisor. In fact, he deliberately kept this information from the new president.
If Michael Flynn had subsequently been revealed to be a double agent, Comey would now be a hero and his surveillance might appeared to have been justified. Instead, a subsequent two-year special counsel investigation—despite catching various individuals in process crimes and an assortment of generally unrelated violations—found absolutely no evidence of collusion between the Trump campaign/administration and Russia.
What about Comey’s concerns about Flynn then? What exactly did Robert Mueller’s final report tell us about Flynn’s phone calls with Ambassador Kislyak? To the extent the report talks about them, they seem pretty innocuous. Here is Mueller’s summary of what is considered the most “incriminating” one:
Immediately after speaking with McFarland, Flynn called and spoke with Kislyak. Flynn discussed multiple topics with Kislyak, including the sanctions, scheduling a video teleconference between President-Elect Trump and Putin, an upcoming terrorism conference, and Russia’s views about the Middle East. With respect to the sanctions, Flynn requested that Russia not escalate the situation, not get into a “tit for tat,” and only respond to the sanctions in a reciprocal manner.
Maybe I’m thick, but that doesn’t sound like treason to me.
We now also know, thanks to FBI notes that have been declassified, that the FBI had basically ended its probe of Flynn in the Russian matter by the early days of the Trump Administration but was then told by upper management to keep the investigation open. In the early, chaotic days of the new administration, two agents (one of whom would later be fired over anti-Trump text messages) met with Flynn in what was meant to be an informal, friendly conversation. Their declassified notes tell us their intention was to catch him in a lie (he did not know he had been under surveillance) or threaten him with a violation of the Logan Act, a two-century-old law that had never been used to prosecute anybody and certainly was never meant to apply to incoming government officials. We have also known for some time that Flynn pled guilty to the charge of lying to the FBI under the threat of his son being prosecuted in an unrelated matter.
So does this make Flynn some sort of hero? Not particularly, since he was largely the victim of his own bad judgments, but he was also very unlucky. Let us remember that Flynn, a Democrat, served in the military more than thirty years and was Obama’s Director of the Defense Intelligence Agency for two years until he was forced out, apparently over policy disagreements, although his management style was the main reason cited.
Former President Obama is still preoccupied with his former DIA director. Two weeks ago in an online talk to the Obama Alumni Association, he railed against the Justice Department decision (after an independent review of the case by an outside prosecutor) to drop the charges against Flynn.
“[T]here is no precedent that anybody can find,” said Obama, “for someone who has been charged with perjury just getting off scot-free. That’s the kind of stuff where you begin to get worried that basic—not just institutional norms—but our basic understanding of rule of law is at risk.”
It is hard to believe that Obama would confuse perjury with the different crime of lying to the FBI, but it is easy to understand why he might do so deliberately in this case. Some of us can remember all the way back to January 2017 when, in his final days in office, he pardoned retired General James E. Cartwright, former vice-chairman of the Joint Chiefs of Staff, for—guess what—the crime of lying to the FBI (about discussions with reporters about Iran’s nuclear program).
Let us note that the FBI’s surveillance of Michael Flynn was not illegal. Nor were the unmasking requests for Michael Flynn’s name. (The fact that this information was leaked days later to The Washington Post, however, was indeed a crime and may be one of the things covered in an ongoing investigation by U.S. Attorney John Durham. Should be interesting since the suspect list is pretty short.) No, it is not any breaking of the law that worries me. It is the fact that this is all not only legal but apparently common.
Some things just never change. If you give politicians the legal means to spy on their political opponents, few will be able to resist the temptation. And even when the spying turns up no dirt, these days all you need to cause trouble is just the innuendo caused by the fact the spying was taking place.
