Was his call with Kislyak recorded by a different agency than the FBI?
Despite Wednesday’s blockbuster news about the dozens of Obama-administration officials who “unmasked” then-incoming Trump national security advisor Michael Flynn, there remains a gaping hole in the story: Where is the record showing who unmasked Flynn in connection with his fateful conversation with Russian ambassador Sergey Kislyak?
There isn’t one.
There is no such evidence in the unmasking list that acting national intelligence director Richard Grenell provided to Senators Chuck Grassley (R., Iowa) and Ron Johnson (R., Wis.). I suspect that’s because General Flynn’s identity was not “masked” in the first place. Instead, his December 29 call with Kislyak was likely intercepted under an intelligence program not subject to the masking rules, probably by the CIA or a friendly foreign spy service acting in a nod-and-wink arrangement with our intelligence community.
Intelligence Collection Under FISA
“Unmasking” is a term of art for revealing in classified reports the names of Americans who have been “incidentally” monitored by our intelligence agencies. Presumptively, the names of Americans should be concealed in these reports, which reflect the surveillance of foreign targets, primarily under the Foreign Intelligence Surveillance Act. Broadly speaking, FISA governs two kinds of intelligence collection.
The first is “traditional” FISA — the targeted monitoring of a suspected clandestine operative of a foreign power. If the FBI shows the Foreign Intelligence Surveillance Court (FISC) probable cause that a person inside the United States is acting as a foreign power’s agent, it may obtain a warrant to surveil that person. If the foreign power’s suspected agent communicates with Americans, the latter are incidentally intercepted even though they are not the targets of the surveillance.
The second kind of FISA collection occurs under Section 702 of the statute. It brings under FISC jurisdiction various intelligence-collection programs that target categories of non-Americans outside the United States. These foreigners also communicate with Americans, so the latter are incidentally intercepted.
Under federal law, both kinds of FISA collection are subject to so-called minimization procedures. These aim to safeguard the privacy of Americans who have been incidentally monitored. When raw intelligence is refined into intelligence reports (including transcripts of recorded conversations) that are disseminated to U.S. officials, the identities of these Americans do not appear. Rather, a designation such as “U.S. Person” is substituted — the “mask,” as it were.
If, upon reviewing intel reports, an official with national-security or foreign-relations responsibilities believes that the reporting is critical, and that the identity of the U.S. person must be known in order for our government to reap the full benefit of the intelligence, then that official may request unmasking. Decisions on such requests are made by specialists assigned to the agency that reported the intelligence in question — usually the FBI or the NSA for intelligence collected, respectively, inside or outside the United States. Our intelligence agencies, led by the Office of the Director of National Intelligence (ODNI), keep records of these requests. This underscores that unmasking — because of its privacy implications, because foreign intelligence must never be a pretext for government spying on Americans — is a big deal that should be done only rarely and carefully.
The Flynn–Kislyak Narrative
With that as background, let’s get back to Flynn.
For three years, we’ve been led to believe that Flynn’s December 29 conversation with Kislyak was intercepted because the latter was “routinely” monitored. (Kislyak was replaced as ambassador in 2017.) That is, Kislyak was an overt agent of Russia, stationed at its embassy in Washington, so the FBI kept tabs on him. Indeed, the “routine”-surveillance story line was repeated by the New York Times just this week.
The implication is that Kislyak was probably subjected to traditional FISA surveillance by the FBI; or, since he lived in Russia and traveled to other places when not in America, perhaps he was also a FISA Section 702 target. In either event (or both), Kislyak was interacting with Americans, who were thus incidentally intercepted.
That, the story goes, is what must have happened to Flynn. Trump’s designated national security advisor was unmasked because, once intelligence agents intercepted the December 29 phone call, they decided it was essential to identify the person with whom the Russian ambassador was discussing sanctions that President Obama had just imposed against Moscow.
I no longer buy this story. If it were true, there would be a record of Flynn’s unmasking. DNI Grenell has represented that the list he provided to Senators Grassley and Johnson includes all requested unmaskings of Flynn from November 8, 2016 (when Donald Trump was elected president) through the end of January 2017 (when the Trump administration had transitioned into power). Yet, it appears that not a single listed unmasking pertains to the December 29 Kislyak call.
Grenell’s list notes an unmasking request for Flynn on December 28, 2016 — weirdly, by the U.S. ambassador to Turkey. There are no unmasking requests on December 29, the date of the Kislyak call. Nor is there one during the week after that. In fact, the next listed unmasking occurred on January 5, 2017. That one is attributed to President Obama’s chief of staff, Denis McDonough. This highlights how central that day is to the anatomy of the Democrat-crafted “collusion” narrative. It was on the morning of January 5 when Obama, Vice President Biden, and National Security Advisor Susan Rice discussed Flynn and the Trump–Russia investigation with FBI director James Comey and acting attorney general Sally Yates.
Yet we know that participants in that meeting already knew about Flynn’s identity as Kislyak’s interlocutor. The exhibits attached to the Justice Department’s motion to dismiss the Flynn case relate that Comey’s deputy, Andrew McCabe, knew about it no later than January 3, the day he briefed Mary McCord, who ran the Justice Department’s National Security Division. Plus, Yates recalled being surprised that Obama already knew about the Flynn–Kislyak call (and, in fact, is the one who told Yates about it). Clearly, the news had been percolating at the highest levels of the Obama administration for at least a couple of days, although it may not yet have made its way down to Joe Pientka, the FBI case agent on Trump–Russia, who on January 4 signed off on a memo closing the FBI’s Flynn counterintelligence investigation (“Crossfire Razor”).
To summarize, the list provided by Grenell indicates no unmasking of Flynn between December 28 (the day before the call) and January 5, even though news of Flynn’s identification was already circulating on January 3 (when McCabe briefed McCord about it).
Beware the ‘Incorrect Narrative’
There is another significant fact that has long been highlighted by the blogger known as “Sundance” at the Conservative Treehouse site. It comes from the infamous Strzok–Page text messages. On May 8, 2017, Strzok texted Page while watching Senate testimony by former acting AG Yates and former DNI James Clapper. As Senator Lindsey Graham (R., S.C.) questioned the two former Obama officials, Strzok wrote to Page (my italics):
F*CK! Clapper and Yates through Graham questions are all playing into the “there should be an unmasking request/record” for incidental collection incorrect narrative.
If we review the transcript of that Senate testimony, we find that Strzok’s observation related specifically to the December 29 Flynn–Kislyak call:
GRAHAM: So there should be a record somewhere in our system whether or not an unmasking request was made for the conversation between Mr. Flynn and the Russian ambassador. We should be able to determine if it did — if it was made, who made it. Then we can ask, what did they do with the information? Is that a fair statement, Mr. Clapper?
Now, to put it mildly, General Clapper is not a notoriously reliable witness. To be fair, though, he was responding here to a line of questioning about what generally should happen in an unmasking situation. He was not claiming specific knowledge that there existed a record of Flynn’s unmasking in connection with the December 29 Kislyak conversation.
Agent Strzok, by contrast, was deeply involved in the nuts and bolts of the Flynn investigation — and was speaking to Page, the FBI lawyer Page then serving as counsel to the bureau’s deputy director, McCabe. As we’ve seen, McCabe was deeply involved in the Flynn investigation and knowledgeable about how the Flynn–Kislyak call came to the bureau’s attention. Though Strzok, who was fired for misconduct, has significant credibility issues, there is no reason to believe he was misstating facts to Page. When he described Clapper’s claim that there should be an unmasking record as an “incorrect narrative,” we must assume that Strzok was right — especially since Grenell’s list contains no such record.
That has to mean Flynn was not unmasked in connection with the crucial December 29 call. Why not?
The CIA and Non-FISA Intel Ops
Well, the possibility that first leaps to mind is: Maybe Flynn was a FISA surveillance target. That is, his interception was not incidental. Rather, the FBI was monitoring him under FISA because he was a suspected agent of a foreign power — the theory based on which the bureau opened their counterintelligence investigation of Flynn in August 2016. But that can’t be right. After an exhaustive investigation of the FBI’s abuse of FISA, Justice Department Inspector General Michael Horowitz concluded that there is no evidence the FBI “requested or seriously considered FISA surveillance of . . . Flynn.” (IG Report’s “Executive Summary,” p. vi.)
It is more likely, then, that the Flynn–Kislyak call was captured by intelligence operations that are not governed by FISA.
The CIA collects intelligence not under FISA but under Executive Order 12,333. The CIA is not governed by FISA because its intelligence operations are conducted outside the United States; the FBI is under FISA because its foreign counterintelligence mission is principally domestic.
Interesting thing about that: Flynn was not in the United States on December 29, 2016. He was taking a short vacation in the Dominican Republic. Where was Kislyak when they spoke? I don’t know. There is plenty of media reporting about Flynn being overseas, and about Flynn speaking with Kislyak. But if there is Western media reporting about Kislyak’s whereabouts, I haven’t found it. Obviously, though, this was the holiday week between Christmas and New Year’s Day — if the Russian ambassador was in the U.S. capital, he was the only pol or diplomat who hadn’t skipped town for a respite after the heated 2016 election. Moreover, New Year’s is an important holiday in Russia, where most of those who observe Christmas do so on January 7, in the tradition of the Orthodox Church. It is reasonable to suppose that the ambassador may have been home in Russia, or otherwise outside the United States, in late December. I do not know that for a fact, but I’d be surprised if it weren’t true.
Readers of my book Ball of Collusion know I have argued that the Obama administration’s Trump–Russia probe/political-narrative long predated the FBI’s July 2016 opening of “Crossfire Hurricane.” I believe there were several strands of the Trump–Russia probe, and that they trace back to 2015, around the time of Donald Trump’s entry into the race for the Republican presidential nomination.
The CIA played a central role. The agency collaborated — I’m tempted to say colluded! — with a variety of friendly foreign intelligence services, especially NATO countries that Trump made a habit of bashing on the campaign trail. Don’t take my word for it. Here’s what former CIA director John Brennan told the House Intelligence Committee:
I was aware of intelligence and information about contacts between Russian officials and U.S. persons that raised concerns in my mind about whether or not those individuals were cooperating with the Russians, either in a witting or unwitting fashion, and it served as the basis for the FBI investigation to determine whether such collusion — cooperation occurred.
Brennan elaborated that, with respect to “leads that involved U.S. persons” that came to the CIA’s attention, he “made sure that anything that was involving U.S. persons, including anything involving the individuals involved in the Trump campaign, was shared with the bureau.”
I hypothesize, then, that Flynn was not unmasked in connection with the December 29 Kislyak call. Either the CIA monitored the call directly or a friendly foreign intelligence service — whether subtly tasked by U.S. intelligence or knowing that U.S. intelligence would be very interested — intercepted the call and passed it along, probably to the CIA. At the time, Kislyak was likely outside the United States, where the CIA would not have needed FISA authorization to monitor him. And while Flynn is an American citizen, he was not only outside the country, he was already regarded by the Obama-era intelligence community as a clandestine agent of Russia — i.e., not an innocent American citizen whose surveillance was merely incidental.
Don’t get me wrong. This week’s revelations about unmasking are important and intriguing. They should be thoroughly examined. In fact, they are only a snapshot of the unmasking issue — involving just one U.S. person (Flynn) over a period of less than three months. It is highly irregular for government officials on the political side of the national-security realm to seek the unmasking of Americans. It is eye-opening to learn that Vice President Biden and President Obama’s chief-of-staff (McDonough) unmasked the incoming Trump administration’s national security advisor. It is downright scandalous that Samantha Power, Obama’s ambassador to the United Nations, who had little reason to seek unmasking, reportedly requested 260 unmaskings . . . and then told Congress that she did not make the vast majority of requests attributed to her — though it remains unclear, years later, who did make them.
But let’s not miss the forest for the trees. This is not just about unmasking. It is about how pervasively the Obama administration was monitoring the Trump campaign.
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