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Q&A on ‘unmasking’ and leaking classified information

House Intelligence Committee Chairman Rep. Devin Nunes, R-Calif., center, flanked by the committee's ranking member Rep. Adam Schiff, D-Calif., left, and Rep. Peter King, R-N.Y., listens on Capitol Hill in Washington, Monday, March 20, 2017, during the committee's hearing on allegations of Russian interference in the 2016 U.S. presidential election. (AP Photo/J. Scott Applewhite)

WASHINGTON (AP) — After FBI Director James Comey publicly acknowledged Monday the existence of an ongoing counterintelligence investigation into potential links between the Trump campaign and the Russian government, the White House introduced a new narrative to push back against the allegations.

“Michael Flynn was umasked and then illegally, his identity was leaked out to media outlets,” White House spokesman Sean Spicer said Monday.

Spicer was referring to reports that Flynn, when he was the incoming national security adviser, spoke with the Russian ambassador to the U.S. in late December. It was reported that during the call, Flynn discussed new sanctions imposed by the outgoing Obama administration. Flynn eventually resigned as national security adviser.

The U.S. government learned of this conversation through routine surveillance of the Russian ambassador to the U.S.

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Here are some questions and answers about U.S. surveillance law and the leaking of classified information:

WHAT IS “UNMASKING?”

When a U.S. intelligence agency, such as the National Security Agency, conducts surveillance of a foreigner inside the U.S., sometimes that surveillance will include the name of an American that the foreigner is speaking to or about. When this happens, intelligence analysts are obliged to hide or “minimize” the name of the American, unless knowing the American’s name is necessary to understanding the foreign intelligence described in the report.

“If, for instance, an intelligence piece were about Russian intelligence assets engaged in an operation to influence political figures, the identity of the political figure would be necessary,” said Todd Hinnen, head of the Justice Department’s National Security Division during the Obama administration and a National Security Council staff member under George W. Bush. “Unless you know the answer to that question, you can’t appreciate the meaning and importance of the intelligence.”

WHO CAN UNMASK AN AMERICANS NAME?

The answer varies by U.S. intelligence agency. On Monday, National Security Agency director Michael Rogers said there are 20 people at the NSA, including himself, who have the authority to reveal the name of an American in a surveillance report.

IS IT ILLEGAL TO UNMASK AN AMERICAN’S NAME?

No.

“There is nothing inappropriate about unmasking when it is appropriate to unmask,” said Benjamin Wittes, a senior Brookings Institution fellow and editor-in-chief of the Lawfare blog.

In the context of the Flynn example, Wittes said, the U.S. is surveilling a foreign target — in this case Russian Ambassador to the U.S. Sergey Kislyak. The target, Kislyak, is contacted by an American who is the incoming national security adviser in the new administration — Michael Flynn — and that American is discussing the future administration’s policy.

Wittes says it is easy to see where identifying this American is important to foreign intelligence.

“I don’t think there’s anything surprising that it got unmasked,” Wittes said.

WHAT IS THE DIFFERENCE BETWEEN UNMASKING AND LEAKING CLASSIFIED INFORMATION?

One is legal and the other isn’t.

The “unmasking” of Flynn’s name is routine, Wittes said. But, he said, sharing Flynn’s name publicly “is both shocking and inappropriate.”

It is a crime to disclose or “leak” classified information. The contents of intelligence collected under the authorities of the Foreign Intelligence Surveillance Act, or FISA, are classified. Flynn’s conversation with Kislyak was collected under these authorities and therefore classified.

IS IT ILLEGAL TO LEAK CLASSIFIED INFORMATION THAT IS INACCURATE?

No.

“If it’s not accurate, then it’s not classified,” Wittes said. “You can’t classify stuff that isn’t true.”

The Trump administration has said reports that Trump associates were in touch with the Kremlin during the campaign are false. Yet the White House has called for leak investigations into the matter.

“You can’t say both — that it is a crime to leak and that it is false,” Wittes said.

CAN THE PRESIDENT LEAK CLASSIFIED INFORMATION?

No, says Wittes.

“The president can declassify anything he wants,” Wittes said. “The mere act of the president saying something is a ‘declassification.'”

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