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Flynn Was Not Masked because the FBI Framed Him as a Clandestine Agent of Russia

Flynn Was Not Masked because the FBI Framed Him as a Clandestine Agent of Russia
Former National Security Adviser Michael Flynn departs after a plea hearing at U.S. District Court in Washington, D.C., December 1, 2017. (Joshua Roberts/Reuters)

The point of all this was politics, not national security.

Well, the mystery is solved, at least if you can believe what the usual sieves — those courageously anonymous “former U.S. officials” — have told their notetakers at the Washington Post. As I surmised in last weekend’s column, Michael Flynn was not “unmasked” in connection with his controversial phone call with Russian ambassador Sergey Kislyak. He was never masked in the first place. The Post reported that on Wednesday afternoon.

Meanwhile, the Post is leading the media–Democrat effort to contort the fact that many Republicans were wrong in assuming Flynn had been unmasked prior to his name’s being leaked to the Post in early 2017 into a storyline that those Republicans must have been wrong to claim the leak was illegal. To the contrary, the leak is a felony, regardless of whether an American’s identity should have been concealed. Information collected under the Foreign Intelligence Surveillance Act (FISA) is classified. The point of classifying information is to keep all of it concealed, not just the names.

Though I was right that Flynn was never masked in connection with the Kislyak call on December 29, 2016, I was off the mark in hypothesizing that the conversation may be been intercepted by an intelligence agency other than the FBI — perhaps the CIA or a foreign intelligence service. Sadly, this owes to my giving the FBI the benefit of the doubt: Had Flynn been picked up on a FISA surveillance of which he was not the target (i.e., a surveillance of Kislyak), I reasoned that the FBI would have masked his identity under statutorily required “minimization instructions.” Indeed, we now know that Flynn’s identity was masked (and then unmasked) dozens of times before and after December 29, precisely because the government knew those minimization rules applied to him.

Alas, in this as in so much else throughout the Trump–Russia farce, the Bureau played fast and loose with the rules. When investigators are so inclined, it turns out the privacy vouchsafed by the minimization rules is illusory. FBI officials — if they thought about it at all — figured Flynn need not be masked because they did not see him as an innocent American incidentally caught up in foreign surveillance. They purported to suspect that he was a clandestine agent of Russia.

Of course, they had no proof of that. And they knew they had no proof. That’s why they never sought a FISA-court warrant targeting Flynn. Doing so would have required showing probable cause that he was an operative of Russia; and as to Flynn, they didn’t even have a fabulist “dossier” to rely on for such a smear.

In fact, by the time of the December 29 call, they’d already concluded there was such a dearth of evidence against Flynn that the Bureau needed to close the investigation they’d ludicrously opened against him four months earlier. I thus surmised that if it had been FBI agents who incidentally intercepted Flynn under FISA, they would have masked him, and thus there would have been an unmasking record (which there isn’t). This seemed especially so in light of former director Jim Comey’s strenuous claims in sworn testimony about how seriously the FBI takes it minimization duties. (“I also want to assure the committee that we take very seriously that obligation to protect U.S. persons’ privacy. This applies to all stages of the production of foreign intelligence, but I’d like to emphasize one area in particular; the dissemination of U.S. person information . . .”).

According to the Post’s report this week, however, it was the FBI that intercepted the Flynn–Kislyak call. The Bureau decided not to mask Flynn before sharing the substance of the call with the Obama White House and other intelligence community components — including the Office of the Director of National Intelligence (ODNI) and the Justice Department. The Post’s revelation matches up with the meticulous reporting of the Daily Caller’s Chuck Ross, who points out that, in both his memoir and congressional testimony, the FBI’s former deputy director, Andy McCabe, indicated that the Bureau had intercepted Flynn conversation and had not masked him.

McCabe claims the Obama administration was taken aback when Russian dictator Vladimir Putin signaled that Russia would not retaliate after Obama imposed comparatively mild sanctions for election meddling on December 28. So, the story goes, our spy agencies were tasked to seek out intelligence about what drove this supposedly stunning decision. In the course of that digging, the FBI discovered the Flynn–Kislyak communications. Presumably, the Bureau had FISA surveillance coverage on Kislyak, who was probably at the Russian embassy in Washington. (I say this because the Bureau is responsible for FISA surveillance on foreign agents who are inside the United States. The Justice Department’s inspector general has concluded that there was no FISA warrant for Flynn, so we must assume Kislyak was the target. Had Kislyak been outside the U.S., the conversation with Flynn — who was in the Dominican Republic at the time — would likely have been captured by the NSA, not the FBI.)

For what it’s worth, I don’t buy McCabe’s story. Oh, I accept that the call was intercepted by the FBI, rather than the CIA, the NSA, or some foreign intelligence agency. At this point, there is no reason to doubt that the FBI captured the call and quickly disclosed Flynn’s identity to the “Obama advisers” with whom it was closely coordinating, as the New York Times reported.

What’s not believable is McCabe’s story about what prompted the FBI to dig up Flynn’s conversation and trumpet his identity. And this is not simply because McCabe is a notoriously suspect source. (Recall: McCabe was fired after the Obama-appointed DOJ inspector general found that he willfully misled investigators — multiple times, including under oath — in connection with a self-serving leak he had orchestrated and for which he had tried to shift suspicion to his fellow agents.)

The main problem here is that the story makes no sense — you know: The Obama administration, just three weeks away from leaving office, and after eight years of passivity in the face of the Kremlin’s lies and provocations, was suddenly so puzzled by Putin’s “no retaliation” announcement, and so worried about its possible national-security implications, that the White House felt compelled to investigate aggressively.

Gimme a break. No rational person would have assumed, just because Putin said Russia would not retaliate, that it would not make mischief at some opportune time. Putin is a former KGB agent and a despot who has gotten unimaginably rich by pilfering his country’s wealth. Lying is his business, and he does it more often than you change your socks. No competent intelligence pro takes what he says at face value. In those rare times when Moscow is not making trouble for us, it is scheming to make trouble for us — that’s a given.

Moreover, even if one suspended disbelief and took Putin’s assurance seriously, it was not an enforceable promise. Common sense would have told any savvy analyst that Putin simply did not think it was in Russia’s interest, at that moment, to ratchet up tensions with the United States. He wasn’t wounded by the new sanctions. They were completely consistent with Obama’s fecklessness, which, by then, Putin knew only too well. And in just three weeks, a new American president, who had cloyingly vowed to strive for good relations with Moscow, would be taking over. At most, Putin’s “no retaliation” blather was intended to exploit the burgeoning collusion narrative. He knew he could rely on the media–Democrat alliance to peddle “no retaliation” as more “proof” that Trump was in Putin’s pocket. That would sow more American discord and further undermine the new president’s capacity to govern — outcomes very much in Putin’s interests.

None of this is rocket science. For Obama officials to feign mystification over why Putin would not get spun up by Obama’s milquetoast sanctions is about as convincing as their precious concern that Flynn might be vulnerable to Russian blackmail over the Kislyak call — when Flynn had done nothing wrong and Russia knew our government had a recording.

We’re being had.

Here’s a more plausible explanation of motive. The Obama administration was actively constructing the Trump–Russia collusion narrative. Obama officials saw Putin’s “no retaliation” pose as an opportunity to float the fiction that the Kremlin had cut a sinister deal with Trump to gut Obama’s sanctions as a reward for Russia’s hacking of Democrats during the campaign. Obama officials and the FBI hoped to conceal the Trump–Russia investigation from the incoming Trump administration for as long as possible, and to continue the investigation of Trump’s campaign — remember, by December 29, they had already gotten a FISA warrant based on the representation that Trump’s campaign had conspired with the Kremlin, and they were preparing to reaffirm that claim in order to get a second 90-day warrant (the second of what would eventually be four).

The Flynn–Kislyak call was intercepted because the FBI had FISA coverage on Kislyak, and both the Bureau and the Obama White House instantly recognized that hyping the call could advance all these objectives. Then, they really hit the jackpot: Even though Flynn had done nothing wrong, Trump officials amateurishly misled the public about the call — claiming that Obama’s sanctions were not discussed, rather than that the topic came up but Flynn made no concessions to Moscow. This, naturally, stoked a few “Flynn discussed the sanctions, then lied” news cycles. These amplified the frenzy over publication of the Steele dossier — choreographed by Obama-administration leaks about the Russia briefing our intelligence agencies gave Trump. Flynn’s days were numbered. By Valentine’s Day, he was cashiered as national-security advisor . . . no longer an obstacle to the Obama-driven strategy of continuing the Trump–Russia investigation after Trump took office.

The point of all this was politics, not national security. It therefore makes perfect sense that Flynn’s name would not have been masked. And the fact is, once you look at the fine print, the decision not to mask Flynn’s name is easier to justify than other decisions the FBI was making at the time — e.g., to open a counterintelligence investigation on the theory that Flynn was an operative of Russia; to seek FISA warrants based on uncorroborated rumors peddled by agents of the Clinton campaign; to misrepresent to the FISA court that evidence had been verified and the main informant was reliable; and so on.

The intelligence community tells Americans it deeply respects their privacy and realizes that collecting information about them — under the guise of monitoring foreign actors — is something that can only be justified by national-security needs and strict adherence to privacy guidelines. To impress its sincerity on us, the ODNI maintains what it portentously calls its “Office of Civil Liberties, Privacy, and Transparency.” In late 2017, that office even published a pamphlet called: “Protecting U.S. Person Identities in Disseminations under the Foreign Intelligence Surveillance Act.”

It is sweet-sounding twaddle. Sure, American identities are masked the majority of the time. On close reading, though, our intelligence agencies reserve the discretion to unmask pretty much whenever they wish. For all the talk, talk, talk about privacy, the pamphlet explains:

As a general matter, a U.S. person’s actual identity may be included in an intelligence report at the time it is first prepared and disseminated if such inclusion meets the agency’s minimization standard (e.g., whether the identity is foreign intelligence, necessary to understand foreign intelligence or assess its importance, or is evidence of a crime).

Notice that this guideline makes it the agency’s subjective call whether to mask a U.S. person’s identity. So, for example, even if the FBI has no actual evidence that Mike Flynn is a clandestine foreign agent — in fact, even if the Bureau has already decided to close a counterintelligence case on Flynn — it need not mask his name if it decides its baseless suspicion is reason enough to claim that Flynn’s conversations constitute “foreign intelligence.”

Or even if the FBI knows Flynn’s job as incoming national-security advisor is to consult with foreign counterparts, and even if the FBI knows Flynn has said nothing improper in his conversation with Kislyak, the Bureau is free to claim that Flynn’s name must be revealed in order to “assess the importance” of his conversations with Russia’s ambassador — something that is not done to other U.S. officials whose job is to consult with foreign emissaries, because the FBI knows it has no business monitoring the conduct of American foreign policy.

Or if the FBI decides a conversation may be “evidence of a crime,” it need not mask a U.S. person’s name — even if the only conceivable crime is a violation of the Logan Act, which the Justice Department has never prosecuted in its 150-year history, which has not been invoked since before the Civil War, and which is so widely seen as unconstitutional that no one has ever been convicted of it since its enactment in 1799.

Feel better now?

Andrew C. McCarthy is a senior fellow at National Review Institute, an NR contributing editor, and author of Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency.

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