Friday, May 15, 2020

The Michael Flynn Unmasking Fight Is Another Chance for More Transparency About Secret Government Surveillance

By Scott Shackford - May 15, 2020 at 03:15PM

When Rep. Devin Nunes (R–Calif.) claimed that the FBI's warrant applications to wiretap former Trump aide Carter Page had serious problems, he faced a lot of mockery and criticism. Defenders of the investigation insisted that the FBI has so many regulations and so much oversight that every T must have been crossed and every box checked before the Foreign Intelligence Surveillance Act (FISA) court would ever approve such warrants.

But an independent review by the Department of Justice's Office of Inspector General ultimately found that proper procedures had not been followed. There was a significant number of errors and omissions that should have been caught in the three warrant requests the bureau submitted to the FISA court. A later audit found that this was not an anomaly: The FBI regularly makes mistakes in its warrants targeting Americans for secret surveillance.

We've seen something similar play out this week. Richard Grenell, acting director of the Office of the Director of National Intelligence, declassified the list of officials in President Barack Obama's administration who sought to unmask Michael Flynn's identity as the feds kept tabs on his conversations with Russian Ambassador Sergei Kislyak. It turns out that a lot of Obama officials—nearly 40 of them—had requested Flynn's unmasking.

In some cases, the requests make sense. Some people have compained that James Comey, James Clapper, and John Brennan were on the list, but at the time they were, respectively, the head of the FBI, the director of national intelligence, and the head of the CIA. Of course they were going to request this information; it was part of their jobs. The fact that they have subsequently become critics of President Donald Trump doesn't change the level of authority they held under Obama.

But why did so many other people put in those requests? Why would Vice President Joe Biden (or a representative from his office) be on the list? Is this normal? Some analysts are insisting that what happened to Flynn is business as usual and that this is all legal and above-board. But as with Page, the average American doesn't have the context required to be sure that's true.

This "unmasking" is part of a very secretive process of deciding who gets to see the names of Americans on transcripts of intercepted foreign communications and raw intelligence. Thanks to an annual transparency report from the Office of the Director of National Intelligence, we know that this happens a lot. According to the latest transparency report, the National Security Agency (NSA) unmasked the names of 10,012 U.S. citizens or residents in 2019 in response to requests from another agency. In short, what happened to Flynn happens much more frequently than what happened to Page.

Many media outlets (Reason included) reported back in January 2017 that as Obama was leaving office, he issued an executive order expanding the NSA's ability to share raw intelligence with other federal agencies. Clearly the Trump administration is using these same orders. So what does this look like exactly? The audit of the Page investigation shows that the government wasn't following its own procedures when it sought surveillance warrants; what would an audit of the Flynn unmasking show? At the very least, it might explain why so many people sought his name, whether this was atypical, and whether it was part of a politically driven process.

Americans deserve more transparency on how this unmasking process works—and a better explanation of why all these people keep requesting unmasking and what happens to that information. This may well be a "routine" process, as so many officials insist, but that doesn't mean that we as citizens should accept the status quo. People insisted the Page warrants were part of a routine process, too, and it turned out that the routine itself was broken.


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